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.
II. 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.
A. 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. …