The Patriot Act

09:44 AM EDT on Wednesday, July 7, 2004

BY GERALD M. CARBONE
Journal Staff Writer

Editor's Note: The USA Patriot Act -- the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act -- has generated intense debate since it was enacted almost three years ago. This series examines the implications of some of the more controversial sections of the act's 342 pages.

Through a subtle but significant shift, Section 203 of the Patriot Act changes more than 200 years of federal legal tradition by relaxing secrecy rules for grand juries.

The government's most powerful investigative arm is not the CIA, the Secret Service or the FBI -- it's the federal grand jury.

By issuing a subpoena, a grand jury can force a person to testify or produce records.

Before federal prosecutors can bring a suspect to trial for a felony, they must present their evidence, in secret, to a grand jury. Grand jurors then decide whether there's enough evidence to conduct a public trial on the charges.

Even before the ratification of the Bill of Rights in 1791, the secrecy of grand juries had always been sacrosanct.

Secrecy in grand jury hearings serves two purposes: it protects the reputations of people falsely charged with felonies, and it allows prosecutors to summon witnesses without tipping off suspects that they're being investigated.

Prosecutors could ask for a court order to disclose information heard by a grand jury, but because grand jury testimony contains sensitive information, such as the names of people being investigated, courts have been famously stingy about granting those requests. An investigator who spoke of what he heard in a grand jury hearing could himself be prosecuted.

Since the passage of the Patriot Act, federal investigators can disclose information heard in grand jury hearings to federal agencies that have no law-enforcement function, such as the CIA, the Defense Intelligence Agency and the National Security Agency.

This means that the CIA or other intelligence agencies may be privy to information that any federal grand jury elicits from witnesses.

Because of the Patriot Act, prosecutors may, for the first time, disclose grand jury information without asking a judge's permission.

An American Law Division analysis of the Patriot Act written for Congress by Charles Doyle concluded: "Critics may protest that the change could lead to the use of the grand jury for intelligence purposes, or less euphemistically, to spy on Americans."

Those critics have included Duke University law professor Sara Sun Beale and noted Florida defense lawyer James E. Feldman, who co-published an article in the Harvard Journal of Law & Public Policy (spring 2002) saying:

"The potential for the backdoor expansion of the grand jury's investigative jurisdiction . . . may increase the risk that national defense and security institutions will be inappropriately involved in domestic affairs."

In an interview, Beale said that grand juries can, for example, order any group to turn over its membership and donor lists. If a prosecutor knew that an intelligence agency wanted such a list, he could subpoena it through the grand jury, then give it to intelligence agencies.

"IF YOU'RE ONLY counting on people to exercise self-restraint, that's a problem," Beale said. "Criminal investigators and intelligence personnel are working hand and glove -- will criminal prosecutors ask for some things that they wouldn't have asked for in a criminal investigation?"

Beale said that one way to prevent prosecutors from abusing their new Patriot Act power to share grand jury information would be to require a judge's approval before disclosure.

"You've got a big, powerful machine there cranking along in secret," Beale said of the grand jury. "Maybe it would be a good idea to make sure there's a little review by a neutral, unbiased judicial figure."

Mark Corallo, a Department of Justice spokesman, said that sharing of grand jury information "is done under very strict, very narrow guidelines. The attorney general [John Ashcroft] actually issued guidelines on information sharing to make sure that it's done very carefully."

The House version of the Patriot Act would have required judicial approval for investigators to share grand jury information, but the Senate version -- the approved legislation -- does not include this safeguard.

Gerald M. Carbone may be reached at gcarbone [at] projo.com or 277-7434.

Tomorrow: The Patriot Act will touch your life when you're opening a bank account or applying for a credit card.