The USA PATRIOT Act of 2001, the Homeland Security Act of 2002, and the False Dichotomy Between Protecting National Security and Preserving Grand Jury Secrecy


This article makes three important contributions. First, it establishes that the right of grand jury secrecy enjoys constitutional protection. The Supreme Court has never had occasion to determine whether the right to indictment by a grand jury established by the Fifth Amendment encompasses a right to secrecy, but the recent amendments to Federal Rule of Criminal Procedure 6(e) all but guarantee that the Court will face this issue. These amendments decimate the grand jury secrecy fiercely protected under the common law and the rules of procedure for nearly a millennium. They put to the test the Court’s long-held position that secrecy is “indispensable” to the grand jury process.

Second, the article demonstrates that even setting aside their constitutionality, the exceptions to the rule of grand jury secrecy created by the hasty amendment of Federal Rule of Criminal Procedure 6(e) are unsound public policy. In creating these exceptions, Congress took measures beyond those necessary to achieve the legitimate goal of preventing and responding to threats to our national security. It granted the Department of Justice unprecedented authority to disclose grand jury materials with no supervision by the courts or by Congress.

Third, the article proposes an amendment to Federal Rule of Criminal Procedure 6(e) that would preserve the right of secrecy and bring the new exceptions within constitutional limits without sacrificing national security interests.


Criminal Law | Criminal Procedure

Date of this Version

May 2004