WHY WE ARE LEARNING INFORMATION ABOUT THE GRAND JURY INVESTIGATION INTO THE SEPTEMBER 11 ATTACKS DESPITE GRAND JURY SECRECY RULES

Nearly every day for the past several weeks, we have been getting updates on various aspects of the criminal investigation into the World Trade Center and Pentagon attacks. Although one would think that criminal investigations, by their very nature, should be secretive endeavors, a surprising amount of information gleaned during the investigation has appeared in the press.

We've seen detailed itineraries of the hijackers' last days, read transcripts of last-minute cellphone calls from the planes, and heard about tapped telephone conversations, hundreds of thousands of dollars in wire transfers, and various witnesses who provided flight instruction, housing, or other resources to the hijackers.

At the same time, press reports state a federal grand jury has been impaneled in New York to investigate the attacks, that material witnesses from Florida and elsewhere have testified before the grand jury, and even that the grand jury is investigating whether or not World Trade Center debris was illegally diverted to scrap metal yards in New York and New Jersey.

If one of the fundamental tenets of our criminal justice system is that of grand jury secrecy, and a grand jury is investigating the September 11th attacks, how is it that we are getting such frequent updates on the progress of the investigation?

Grand Jury Secrecy: The Rules and The Reasons Behind Them

Our Constitution guarantees the right to indictment by a grand jury for certain crimes, and the proper functioning of a grand jury depends largely on the secrecy of the proceedings.

Accordingly, pursuant to Federal Rule of Criminal Procedure 6(e), prosecutors, grand jurors, stenographers, and any translators who are present in a grand jury session are expressly prohibited from disclosing "matters occurring before the grand jury."

This strict grand jury secrecy rule encourages witnesses to come forward and be truthful, and it also ensures freedom of deliberation amongst the grand jurors. Furthermore, keeping the names of the targets secret decreases the likelihood that defendants will flee the jurisdiction. It also protects those who are never charged by the grand jury from the public's knowing that they were suspects.

Courts have taken grand jury secrecy provisions very seriously. They have prevented grand jury witnesses from receiving transcripts of their own testimony, and barred witnesses from taking notes in the grand jury room. They have also sealed hearings on, and legal papers relating to, motions to quash grand jury subpoenas.

Moreover, in the exercise of their discretion, courts generally have interpreted "matters occurring before the grand jury" extremely broadly. Courts interpret this phrase to cover not only what actually transpires in the grand jury room, but also anything that may reveal who the witnesses are, what is likely to occur, and the strategy or direction of the investigation.

Some Aspects of a Criminal Investigation Fall Outside Grand Jury Rules

Nevertheless, even after a grand jury investigation is underway, there are a couple of ways by which aspects of the pertinent criminal investigation may legally be disclosed.

First, the Government frequently obtains documents, witness statements, and other evidence without resorting to grand jury subpoenas. Some companies and individuals refuse to talk to law enforcement agents or to hand over their records unless they are subpoenaed. But others willingly share information without involving the grand jury. Information obtained from companies and individuals voluntarily, without grand jury involvement, need not be kept secret.

Even items not voluntarily surrendered — such as evidence obtained from the execution of a search warrant — can also fall outside the province of the grand jury. Accordingly, information about such evidence also falls outside the ambit of grand jury secrecy rules.

Now, it may be the case that the grand jury will eventually hear about most, if not all, of the materials gathered during the course of a criminal investigation. However, until that information is presented to the grand jury, it does not necessarily fall within the scope of "matters occurring before the grand jury."

In fact, some courts have held that documents obtained with a grand jury subpoena, but never actually submitted to the grand jury, are not governed by grand jury secrecy provisions. Therefore, even though a grand jury is engaged in an ongoing criminal investigation, many aspects of the same investigation may simultaneously occur outside the province of the grand jury. That provides one explanation for how information about the investigation can be legally disclosed despite the existence of the grand jury and its secrecy rules.

Witnesses May Legally Disclose What They Told the Grand Jury

A second way that aspects of an investigation can be disclosed legally, despite grand jury secrecy rules, is through witnesses who testify before the grand jury.

These individuals — arguably the most critical participants in grand jury proceedings — are under no obligation to keep what they told the grand jury a secret. Indeed, more than that, it is actually improper for a prosecutor to instruct a witness to keep her knowledge of the proceedings confidential.

Nevertheless, targets of a grand jury investigation usually want to keep that fact under wraps. Other witnesses, too, normally are loathe to publicize any connection between themselves and a criminal investigation. As a result, it is no surprise that we rarely hear from grand jury witnesses about their own testimony.

The Limited Accuracy of Much Grand Jury Reportage

For these reasons, any media reports regarding what is transpiring before a grand jury must be viewed with skepticism. Since witnesses rarely talk to reporters, the reports may be third- or even fourth-hand.

Moreover, even if witnesses do talk to the media, their accounts are frequently skewed by personal agendas, faulty recollections, or the challenge of divining the true nature of the investigation.

After all, the information flows in only one direction in the grand jury room. Witnesses are not jurors who view the entirety of the testimony and decide upon charges, but rather individuals who simply appear, testify, and depart. They give information rather than receiving it.

Although the Government will inform a target who testifies of his target status, non-target witnesses ordinarily do not know how their pieces of the puzzle fit into the overall picture, much less who the targets are. Thus, a witness who believes that his testimony is wholly insignificant may in fact supply the smoking gun, whereas another witness who claims to be at the center of the storm may be providing only the most peripheral details.

In any criminal inquiry, the Government's first instinct is to divulge nothing. But the public's thirst for information since September 11 has successfully elicited countless facts about the terrorist investigation.

When it comes to the grand jury's role in that investigation, however, our knowledge is sorely incomplete. And, if everyone is playing by the rules, that's exactly how it should be.