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Article Excerpt
As a British politician supposedly once stated, democracies respond when there is blood in the streets. (1) In response to the tragic and horrifying events of September 11, Congress moved with virtually unprecedented speed to enact a sweeping new piece of anti-terrorism legislation known as the USA PATRIOT Act. (2) One critically important provision of that legislation allows prosecutors, under certain circumstances, to disclose grand jury information to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official. (3) As a result of this exception to grand jury secrecy, federal prosecutors are now authorized to disclose grand jury material--testimony before the grand jury as well as documents produced in response to grand jury subpoenas--that contains foreign intelligence or counterintelligence information. Moreover, unlike the previous exceptions to grand jury secrecy, this new exception requires neither judicial pre-approval nor detailed post-disclosure reporting. In its starkest terms, therefore, this legislation, for the first time, gives the Central Intelligence Agency ("CIA") and our nation's other intelligence and defense agencies entry into the grand jury--one of the most powerful and secretive domains of domestic law enforcement. (4) Moreover, this access to the grand jury is essentially unsupervised.
This Article analyzes the dramatic new exception to the long-standing tradition of grand jury secrecy implemented by the USA PATRIOT Act. Part I discusses the tradition of grand jury secrecy as codified by Rule 6(e) of the Federal Rules of Criminal Procedure, (5) noting in particular the limited exceptions to such secrecy in place before the USA PATRIOT Act. Part II summarizes the changes to Rule 6(e) adopted in the USA PATRIOT Act. Part III analyzes this new exception in light of the traditional concerns--furtherance of the government's investigative capabilities and protection of the innocent accused--that have animated the policy of grand jury secrecy. This Article concludes that, while the new exception created by the USA PATRIOT Act to the traditional secrecy rules that protect the work of the grand jury is, on balance, justified by the national security concerns that animated the Act, Congress failed to include sufficient safeguards within the Act to guard against the kinds of abuses that drove Congress to separate domestic law enforcement and the intelligence community twenty-five years ago. As a result, Part IV suggests that the Act should be modified in order to ensure greater accountability. Specifically, prosecutors should be required both to obtain prior approval from a special court before disclosing grand jury information to the intelligence community and to maintain sufficient records to permit searching congressional oversight.
I. THE PRIOR REGIME
Section 203 of the USA PATRIOT Act amends Rule 6(e) of the Federal Rules of Criminal Procedure. Rule 6(e) codified a longstanding tradition of diligently preserving the secrecy of grand jury proceedings. (6) Secrecy has been an important component of the grand jury process since at least the seventeenth century, when grand jurors successfully objected to the king's efforts to publicize--and thereby politicize--grand jury proceedings. (7) This tradition of secrecy was incorporated by the American colonies into their own grand jury systems. (8) Challenges to the principle of grand jury secrecy began almost immediately, (9) with courts typically determining that the government's interest in maintaining the secrecy of grand jury proceedings trumped the defendant's need for access to those proceedings. (10) This common law tradition of safeguarding grand jury secrecy was codified in 1946 when the Federal Rules of Criminal Procedure took effect. (11)
In essence, Rule 6(e) orders prosecutors and grand jurors, although not the witnesses themselves, (12) to keep information related to a grand jury investigation secret. The rule provides that these individuals, and other administrative and investigatory personnel, "shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules." (13) Although courts have often struggled with the definition of what constitutes "matters occurring before the grand jury," (14) it is incontrovertible that the substance of any testimony given before the grand jury may not be disclosed to anyone except under very limited circumstances, such as to another grand jury (15) or when ordered to do so by a judge in connection with a judicial proceeding. (16) Perhaps the most commonly used exception to Rule 6(e)'s general policy of secrecy is that permitting disclosure to law enforcement personnel assisting a prosecutor with a criminal investigation. (17) Any prosecutor making a disclosure to law enforcement personnel under this section must "promptly" provide to the district court that impaneled the grand jury the names of the individuals to whom grand jury information was disclosed and the prosecutor must also certify to the district court that she has advised those individuals of their secrecy obligations. (18)
In interpreting Rule 6(e), the Supreme Court has repeatedly reaffirmed the importance of preserving the secrecy of grand jury proceedings. (19) In Sells Engineering, for example, the Court refused to permit Justice Department prosecutors to give automatic access to grand jury materials even to their own colleagues in the Justice Department's Civil Division. (20) The only way such attorneys can gain access to grand jury materials is to make a "strong showing of particularized need" to a judicial officer. (21) The Sells Court emphasized that the grand jury would in fact be unable to function if the secrecy of its proceedings were not carefully maintained. (22) Indeed, the Court has gone so far as to call grand jury secrecy "indispensable." (23)
The federal courts have traditionally cited five different interests that are served by maintaining the secrecy that protects the work of the grand jury. These interests are: (1) preventing the escape of putative defendants who are being investigated by the grand jury; (2) preventing such defendants from suborning perjury or otherwise tampering with potential witnesses; (3) preventing such defendants from importuning the grand jurors themselves, and thereby ensuring that grand jurors can deliberate free from improper influence; (4) encouraging frank and fulsome disclosure from witnesses called before the grand jury; and (5) protecting accused individuals later determined to be innocent from public censure and ridicule. (24) The adoption of Rule 6(e) ensured that these interests would be protected by strictly limiting the circumstances in which the need for disclosure would be found to "outweigh[] the public interest in secrecy." (25)
One of the Supreme Court's most recent grand jury decisions, United States v. Williams, (26) sounded the two themes of defense of and deference to grand juries that have resonated throughout the Court's jurisprudence in this area. In Williams, the Court ruled that an otherwise valid indictment could not be dismissed because the prosecutor failed to present exculpatory evidence to the grand jury. (27) As usual, the Court defended the unique role of the grand jury in our criminal justice system, remarking that the grand jury is "`rooted in long centuries of Anglo-American history'" (28) and is a "`constitutional fixture in its own right.'" (29) The Court also emphasized the limited nature of the judiciary's oversight authority in reference to the routine functioning of the grand jury, noting the grand jury's "tradition of independence" (30) and "operational separateness from its constituting court." (31) This longstanding tradition of judicial deference in matters involving the grand jury, when coupled with an even more powerful tradition of judicial deference in matters involving national security, (32) highlights the potential pitfalls in the grand jury provision of the USA PATRIOT Act.
II. THE USA PATRIOT ACT
The USA PATRIOT Act is legislation of almost staggering scope and complexity; at 342 pages long, it covers 350 subject areas and involves forty different federal agencies. (33) Enacted with near-record speed, the USA PATRIOT Act addresses virtually every conceivable area of federal law enforcement authority. The Act dramatically expands the authority of federal agencies to conduct wiretapping and other electronic surveillance while simultaneously curtailing judicial oversight. (34) The Act also increases authorization to use more conventional law enforcement tools for intelligence purposes by allowing, for example, greater access to business records (35) and increased use of secret searches. (36) Additionally, the Act augments and increases the authority of the Attorney General to detain and deport non-citizens who are certified as a danger to national security or who belong to certified terrorist organizations, with only minimal provision for judicial review. (37) Through a substantial rewriting of Rule 6(e) of the Federal Rules of Criminal Procedure, the Act also authorizes the sharing of domestic grand jury information with the intelligence community. (38)
Under [section] 203(a) of the USA PATRIOT Act, when matters occurring before the grand jury involve foreign intelligence or counterintelligence information, disclosure can be made to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official. (39) Only three restrictions are placed on the disclosure: the official who receives the information may only use it in the course of his official duties; the use is "subject to any limitations on the unauthorized disclosure of such information"; and "within a reasonable time after such disclosure, an attorney for the government shall file under seal a notice with the court stating the fact that such information was disclosed" and the departments to which it was disclosed. (40) The definition of foreign intelligence information is identical to the extraordinarily broad definition used in the Foreign Intelligence Surveillance Act, which is discussed in greater detail below. (41) It includes information relating to the ability of the United States to guard against actual or potential attack, sabotage or terrorism; clandestine intelligence activities; and information relating to the national defense, security, or foreign affairs of the United States. (42)
The USA PATRIOT Act was enacted with virtually unprecedented speed, with only six weeks elapsing between the Bush Administration's initial proposal of anti-terrorism legislation and the enactment of the bill in its final form. (43) As a result, the legislative history is strikingly spartan, particularly considering the expansive nature of the Act. (44) The original House and Senate versions of the bill initially contained very different versions of the proposal permitting more widespread dissemination of grand jury information. The House version allowed disclosure of grand jury information only when authorized by a court. (45) The Senate version, by contrast, contained no requirement of prior judicial authorization or even of subsequent judicial notification. (46) The question of whether to include a judicial authorization requirement within the bill apparently was a point of controversy between the White House and the Senate Judiciary Committee, with the parties ultimately compromising on language mandating only judicial notification. (47)
Senator Patrick Leahy's statement on the day the Senate considered the final version of the Act makes plain that some lawmakers had grave concerns about authorizing the widespread dissemination of grand jury information. Senator Leahy emphasized that permitting foreign intelligence information from domestic law enforcement operations to be shared with the intelligence community constituted a "grave[] departure" from prior practice and was one of the portions of the bill with the "most potential for abuses." (48) Indeed, Senator Leahy specifically noted that this new statutory authority constituted an "invitation to abuse without special safeguards." (49)
Despite these stem warnings, however, Senator Leahy then seemed to take comfort in the judicial notification provision that was added to the bill by the Senate; this provision was not included in the initial proposal delivered to Congress by Attorney General Ashcroft. The Senator claimed that the judicial notice provision "maintain[ed] some degree of judicial oversight of the dissemination of grand jury information." (50) He conspicuously failed to address the problem that post hoc judicial notification leaves judges with very little authority to oversee anything at all.
The remainder of the limited commentary that was offered during the legislative process regarding the grand jury provision was generally favorable. For example, Attorney General John Ashcroft informed Congress that allowing more widespread dissemination of intelligence information was a critically important piece of the new authority sought by the administration. (51) Senator Orrin Hatch simply noted the addition of the judicial notification requirement with approval. (52) Senator Russ Feingold, who cast the lone Senate vote against the USA PATRIOT Act and issued a statement criticizing many of the Act's provisions, failed to address the grand jury provision at all. (53) Morton Halperin, testifying on behalf of the Center for National Security Studies, noted that the proposals "concerning the sharing of information on Americans with the intelligence community," which include the grand jury proposal, represent a "sea change in laws that have been on the books for thirty years" segregating domestic law enforcement and the intelligence community. (54) Although Dr. Halperin urged Congress to move cautiously, ultimately he testified that the Bush Administration's proposal was appropriate, while urging Congress to include language mandating court approval for the disclosure. (55) Only one commentator, Jerry Berman, strongly condemned the grand jury proposal, noting that it was a "sweeping change in the law" and urging that it be "drastically curtailed." (56)
III. SHARING GRAND JURY INFORMATION WITH THE INTELLIGENCE COMMUNITY
The grand jury provision of the USA PATRIOT Act raises three particular questions: (1) whether permitting prosecutors to share grand jury information with the intelligence community is a sensible policy decision in the abstract; (2) if it is a sensible policy choice, whether Congress drafted [section] 203 in a manner that effectively protects the core functions and protections of the grand jury process; and (3) whether Congress should consider modifications to [section] 203 if it revisits this terrorism legislation in the future.
First, is permitting prosecutors to widely share grand jury information with the intelligence community a sensible policy decision? Critics of the grand jury system are obviously legion, (57) and this is one just one of the many proposals that has been made to modify grand jury practices and procedures. (58) Although many critics of the grand jury system have advocated passionately for greater access to grand jury proceedings, (59) giving the CIA, the Immigration and Naturalization Service ("INS"), the Department of Defense, and the National Security Agency, among others, virtually unfettered access to grand jury transcripts, documents, and databases is hardly the kind of reform they had in mind. (60)
Any modification to existing grand jury practices, such as the USA PATRIOT Act, should be analyzed utilizing a three-part framework. The first two parts of the analysis derive from the historical conception of the grand jury as both a sword and a...
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