© 2002 by Susan Brenner & Lori Shaw
Table of Contents:
The United States has declared war on the terrorists who perpetrated the September 11 attacks on the World Trade Center and on the Pentagon and on those who support them. The war on terrorism will be waged on two fronts: The U.S. military machine will engage in armed conflict with terrorists at their bases outside the United States; the U.S. justice system will find members and supporters of the group(s) who perpetrated the September 11 attacks, in the United States and elsewhere, and bring them to justice in the U.S. court system.
The intricate web of terrorism needed to pull off the multiple attacks likely involved hundreds of people and spanned the globe. It may require years of investigation and millions of dollars for the U.S. justice system to untangle that web. Federal grand juries are likely to play a central role in these investigations, just as they did in the investigation of the Oklahoma City bombing, the 1993 World Trade Center bombing, and the bombing of two U.S. embassies in Africa. A federal grand jury investigating the World Trade Center crashes has already convened in White Plains, New York.
This article explains why grand juries will be used in these investigations. It also seeks to demystify the grand jury, the least understood and most secretive component of the American justice system. And it outlines some of the challenges involved in conducting an international investigation.
Federal grand juries do two things: They investigate to determine if federal crimes have been committed; and they indict, or bring criminal charges against, those whom the grand jury believes committed federal crimes. To indict, the grand jurors must have probable cause to believe the persons indicted did violate federal criminal law.
Grand juries offer prosecutors several advantages in conducting a criminal investigation, especially a high-profile, factually complicated investigation. For one thing, grand juries operate in secret; this not only gives prosecutors the ability to shield the evidence they are gathering from disclosure to the press and others, it can also encourage people to cooperate with a grand jury. Unless a witness reveals that he or she testified before a federal grand jury, no one ever needs to know that occurred, and since the transcripts of grand jury testimony are secret, no one will know what the witness said. This can be an advantage in an investigation, such as an investigation into terrorism, where witnesses may be afraid of retaliation if they cooperate with investigators.
Grand juries also give prosecutors the power to subpoena witnesses and evidence from around the country and, in some circumstances, from other countries, as well. (Getting evidence from abroad is discussed below.) If federal agents want to interview someone, the person can refuse to speak to them; this is true even if the person is arrested as a material witness, because persons who are arrested can invoke the Miranda rights to silence and to an attorney. The U.S. Supreme Court has held, however, that the Miranda rights are not available to witnesses subpoenaed to testify before a grand jury. Unlike someone being interrogated by federal agents, a grand jury witness not only has not right to silence or counsel, he or she is required to answer questions posed by the prosecutor working with the grand jury and by the grand jurors. A grand jury witness can refuse to answer if he or she can invoke the Fifth Amendment as to a question, but the privilege must be claimed as to each question and the prosecutor can challenge a witness' ability to invoke the privilege.
And even if a witness shows that he or she is entitled to invoke the Fifth Amendment privilege, a prosecutor can deprive the witness of that right by giving the person immunity. Once the person has been given immunity, he or she has to answer the grand jury’s questions; if the witness still refuses to answer, the person will be incarcerated for civil contempt until he or she complies. People have been served up to eight years for refusing to speak when ordered to; Susan McDougall, who was subpoenaed by the White Water grand jury, served 18 months for civil contempt when she refused to cooperate with that grand jury.
Grand juries also certain advantages in regard to gathering documents and other types of physical evidence. Assume agents want to obtain bank records that may provide evidence about the activities of the World Trade Center terrorists. To get a search warrant for the records, the agents have to convince a magistrate that they have probable cause to believe the records are evidence of the commission of a federal crime; while the agents may be able to do this, gathering the information they need to present to the magistrate and completing a warrant application take time. A grand jury, on the other hand, can issue an evidence subpoena (called a subpoena duces tecum) for records or other evidence whenever it likes; the grand jury does not have to show probable cause or, indeed, establish any other evidentiary standard to issue subpoenas for documents, computers, blood samples or any other type of physical evidence. Grand juries are given wide latitude in conducting their investigations, so they can cast a wide net in issuing subpoenas for witnesses and for evidence.
Finally, grand juries can hear evidence that is not admissible in court. They can consider hearsay evidence which would not be allowed at trial and evidence obtained as the result of an illegal search and seizure that violated the Fourth Amendment.
A federal grand jury has the power to serve a subpoena on any person within the United States. Thus, both U.S. citizens and visitors to the U.S. may be compelled to testify and/or provide physical evidence. A federal grand jury also has the authority to subpoena U.S. citizens and residents abroad. Federal law currently does not grant grand juries the power to subpoena non U.S. citizens and residents abroad. However, in the wake of the attacks of September 11 and the fear of further attacks, every possibility exists that Congress will elect to extend the reach of grand jury subpoenas.
The question of whether aliens outside the United States could use the U.S. Constitution as a shield against testifying remains open. Many commentators believe that Fifth Amendment Due Process rights do not extend to aliens outside U.S. territory. Further, even if such rights exist, they would not be violated if prosecutors can show that a nexus exists between the witness and the United States such that it would not be unfair to submit him or her to the power of U.S. courts. Such a nexus exists if a transaction was aimed at causing criminal acts within the U.S. Ironically, this standard was most recently articulated in United States v. Bin Laden, a case involving the bombing of U.S. embassies in Kenya and Tanzania.
Yes. In the past the Supreme Court has upheld the indictment and conviction of defendants who were literally kidnapped by U.S. forces and brought to the United States. Once a person is within U.S. territory, service of a subpoena is no longer a problem. Although these cases involved grand jury targets, rather than mere witnesses, at least one U.S. Court of Appeals has concluded that the principle of these cases also applies to material witnesses. Material witnesses are persons whom federal authorities have probable cause to believe have crucial information pertaining to the crime at issue.
A federal grand jury may investigate crimes that took place entirely outside of U.S. territory. If acts outside the U.S. were intended to produce harm within the U.S., a federal grand jury has the authority to investigate those acts and indict those involved. For example, if the White Plains grand jury believes that a foreign bank subsidized the bombing of the World Trade Center, it may investigate the bank’s support of the terrorists with an eye towards indicting the bank and its officers. Once persons have been indicted by a grand jury, they may be arrested by federal agents anywhere in the world.
A grand jury also has the authority to investigate acts outside the U.S. and issue indictments against those involved if the acts somehow threaten U.S. sovereignty or security. The terrorist bombings of the U.S. embassies in Kenya and Tanzania are prime examples of such threats. Although the bombings took place outside the U.S., a federal grand jury investigated and indicted those responsible, including Osama Bin Ladin. You can find the indictment here: U.S. v. Usama bin Laden, http://www.fbi.gov/majcases/eastafrica/indictment.pdf. The recent convictions of those involved may be linked to the attack on the World Trade Center and the Pentagon. You can find more about them here: http://www.fbi.gov/terrorinfo/terrorism.htm.
A federal grand jury is composed of 16-23 people. At least sixteen jurors must be present for a grand jury to conduct business. At least twelve jurors must vote to return an indictment; if fewer than twelve vote to return an indictment, it fails and no charges are brought.
Grand jurors come from every walk of life. The idea is to have average American citizens who, as the U.S. Supreme Court said in Wood v. Georgia, stand “between the accuser and the accused, whether the latter be an individual, a minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.”
Will there only be one grand jury investigating the attacks? Can the White Plains grand jury investigate the Pentagon attack and the crash of the plane outside Pittsburgh?
There may be one grand jury or there may be several. A federal grand jury sits in a particular judicial district; the White Plains grand jury is sitting in the judicial district for the Southern District of New York, which is where the World Trade Center was located. A federal grand jury can only investigate and return charges for crimes that were committed in the district where it sits. This could, therefore, mean that the White Plains grand jury can only investigate the World Trade Center attacks.
A grand jury can, however, investigate “continuing offenses” that were committed in more than one district. Federal prosecutors could, therefore, interpret the four plane highjackings and the attacks on the Pentagon and on the World Trade Center as a single “continuing offense,” in which case the White Plains grand jury could investigate that offense.
Alternatively, prosecutors may decide to convene a separate grand jury in the District of Columbia to investigate the attack on the Pentagon, and they might decide to convene another grand jury in Boston, to investigate the highjacking of the planes that flew out of Boston’s Logan Airport.
Multiple grand juries can conduct investigations simultaneously, and witnesses cannot object if they are called to testify by more than one grand jury. Alternatively, grand juries can share transcripts of testimony they have heard with other federal grand juries.
It is also possible that state grand juries could be convened to investigate the attacks and bring charges for the losses of life and damage to property. A New York state grand jury could, for example, charge the terrorists with homicide, among other crimes, for the bombing of the World Trade Center. A state grand jury investigation becomes more probable if state officials are dissatisfied with the outcome of any federal prosecution. And there is no double jeopardy bar to prosecuting perpetrators at both the state and federal levels. This is illustrated by the Oklahoma state grand jury indictment of and upcoming trial of Terry Nichols, Timothy McVeigh’s accomplice in the bombing of the Oklahoma City federal building.
Notwithstanding grand jury secrecy, the public learned quite a lot about what the grand jury investigating the Clinton-Lewinsky relationship was doing. This information came from two sources: leaks from those involved with the investigation and statements by witnesses subpoenaed by the grand jury.
Neither of these is likely to occur with the grand jury or the grand juries investigating the September 11 attacks. The witnesses in the terrorist investigation(s) could, like the witnesses in the Clinton-Lewinsky investigation, reveal the fact that they testified before a grand jury and describe what they said in their testimony. The law of grand jury secrecy does not apply to grand jury witnesses, only to prosecutors, grand jurors, court reporters and others who assist with a grand jury investigation. Witnesses subpoenaed to testify about the September 11 attacks are, however, far less likely to let it be known that they have testified before the grand jury; those who were associates of the terrorists will keep silent because of a fear of retaliation. Others will no doubt keep silent out of respect for the investigation, on the theory that revealing their testimony might help the targets of the investigation escape justice. It is also possible that a federal court could order a witness to remain silent about the fact that he or she testified and about the substance of their testimony until the investigation has concluded; the U.S. Supreme Court has held that witnesses cannot be forever barred from disclosing this information, but the Court would likely uphold requiring a witness to remain silent until the investigation was complete. And it is exceedingly unlikely that those involved in conducting the investigation will leak information about the grand jury’s activities because they, too, will not want to provide any aid or assistance to the targets.
You can learn more about federal, and state, grand juries and share your experiences with grand juries at this web site: http://www.udayton.edu/~grandjur.
University of Dayton School of Law
Professor Lori Shaw