By Amara S. Chaudhry, The Legal Intelligencer, May 31, 2013
Can a federal grand jury be lawfully used solely for purposes unrelated to any criminal investigation?
The Philadelphia chapter of the Council on American-Islamic Relations (CAIR-Philadelphia) wants to know the answer to that question. To get that answer, CAIR-Philadelphia (which I serve as legal director) has already engaged in significant litigation on this issue at the district court level, and we have filed an appeal with the U.S. Court of Appeals for the Third Circuit.
In particular, CAIR-Philadelphia wants to know whether federal grand juries, which typically operate solely within the context of criminal law, can be used to assist the FBI with general "intelligence gathering" national security investigations in which there is no suspected violation of federal criminal law.
To articulate the precise issue more clearly, it is necessary to clarify the distinction between the "criminal investigations," which are clearly within a grand jury's lawful authority, and the type of general "intelligence gathering" investigations that concern CAIR-Philadelphia.
In the aftermath of the horrific attacks on the United States that occurred September 11, 2001, it is no longer possible to credibly dispute the fact that federal law enforcement, in the form of the FBI, no longer operates solely in the realm of criminal law. Prior to 9/11, the FBI was a traditional police-style law enforcement agency that collects evidence needed to prosecute past, present and ongoing federal crimes, including terrorism crimes pursuant to Title 18, Chapter 113B, of the U.S. Code. Since 9/11, the FBI has shifted its focus to become an intelligence agency that engages in general intelligence-gathering investigations to detect and prevent future acts that may, or may not, violate federal criminal law. This shift in focus has been documented by the Congressional Research Service, a nonpartisan entity that operates within the Library of Congress. (See the report "FBI Intelligence Reform Since September 11, 2001: Issues and Options for Congress (2004)" by Alfred Cumming and Todd Masse.) This shift was also documented in Time magazine as recently as May 13. (See "Homeland Insecurity: How Far Should We Go?") (Read the full article)
Amara Chaudhry is legal director of CAIR-Philadelphia.