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One of the first witnesses
subpoe. naed, granted immunity, and compelled to testify before the llarrisburg grand jury was Sister Joques Egan. She was given instructions such as. Relate all conversations you have had in the past year with Sister Elizabeth McAli-ter." Minutes after she refused to an-wer question that she claimed were based on illegal wire. tapping, she was held in contempt ani jailed. On her appeal the Justice Department did not deny the charge but argued that slie had no right to raise the issue at all!
The Court of Appeals freed Sister Egan from the contempt judgment and ordered a hearing to determine whether the questions were bad on illegal wiretapping. The Justice Deparimunt argued that it would unreasonably delay grand jury deliberations if a witness could force a hearing merely by alleging she had torru the target of illegal surveillance. The pipellate judges had a simple
We assume that the Gov. ermanent will attempt to conduct sur veillants within statutory and constitutional limits, and that ... the Government will produce in court the warrant by which it proceeded, and a brief inquiry will demonstrate that the warrant was properly obtained and that the surveillance did not exceed the authority."
In a 5-to-4 decision, with all four of Nixon's appointees dissenting, the Supreme Court upheld the lower court's decision in Egan. Nonetheless, the Justice Department went on responding to wiretap challenges raised by scholars at the Boston Pentagon Papers grand jury with a series of ambiguous statements that the Court of Appeals found to be “inadequate denials." So long as the Justice De. partment avoids the procedure outlined by Egan, we lose an opportu nity that political grand juries offer for uncovering illegal conduct, but the illegal conduct in question is that of the Justice Department and the Justice Department controls the granil jury game.
The record of the Justice Department's us of the grand jury in the Ellsberg ras in itself a catalogue of the abuses to which the people panel haben ubjecteel. liter pelo liration of the Pentagon Papers fuel. oral investigators' harament of Daniel Ell-brer and his mighbors. trade-men, and acquaintances was supplemented by subprettet som
signed to protect us from the dangers of a police state has been used to bring us still closer to one.
Little effort is made any more to disguise the extent to which the grand jury = function has been distorted. A Brooklyn grand jury recently was investigating an attempt to break into an I Blollice in Long I-land. Witne-** reported that while the jurur read magazines and new-piper, the Ju-lice Department proscutor reg ularly excused limeli to confer with agents of the FBI. Over and over
gain le returned to ask the same questions that the FBI had been ask ing the same individuals in its own investigation. It is becoming increas. ingly clear that the FBI has simply donned the august mantle of our people's panel and seized ils powers. This distresses me both because the FBI las concurrently assumed the nature of a political police and be. cause these changes obviously have the approval of the highest Justice Department officers responsible for the conduct of the grand jury proceedings.
The same subpoena power that is being used to satisfy the FBI's curiosity is being used to harass and punish the politically unpopular. It is very intimidating to be hauled be. fore a grand jury, denied a lawyer, and asked: "Who was at this meeting?" or "What was said?" or "Give me the names of everyone you spoke to in March." On the West Coast a grand jury showered more than one hundred subpoenas on individuals engaged in antiwar activities there. No indictments ever issued from the proceedings.
When J. Edgar Hoover attempted to discredit and smear the Catholic antiwar movement with his sensa. tional charges of a bombing kidnap ing plot, he was immediately challenged to substantiate his charges. lloover's suprriors in the Justice De. partment siened the speculative let. ters exchanged between Si-ter Elizabwith Vollister and father Philip Berrigan, and the testimony of agent provocateur Boyd Douglas, insufficient to support a criminal charge. They had already refused even to convene a grand jury. But loover's publir outburst forced his titular -upwrior to act. The sini ter picture the painted was given an easy kind of legitimacy liy indietmente necured from an obedient federal grand jury in Harrisburg on the basis of the
same testiniony and letters that the Justice Department had already deemed insufficient. Almost eighteen months passed before a trial jury in Harrisburg vindicated the defendants by refusing to convict them on any thing except the technical offense of smuggling letters in and out of prison.
The Harrisburg grand jury served Iwo other improper purposes. Over thirty persons, all closely connected with the antiwar movement, were subpoenaed in a belated effort to dredge up evidence to corroborate the unsubstantiated accusations. And the continuing investigation by the Harrisburg panel created the impres. sion of an even wider conspiracy than the one pictured by Hoover. This impression was compounded when wit. nesses were sentenced for refusing to respond to Guy Goodwin's expeditions. Their refusal was not based on fear of prosecution- the noncooper ators included those to whom God win had granted inmunity bulon principle and on law: the questions exceeded the proper scope of a grand jury's function; the prosecutors were seeking evidence, but the panel had already issued the indictment; and the evidence used to support the subpoenas was itself the product of the government's illegal wiretapping.
IT IS WORTH looking more closely Lat the wiretapping objection, not so much because it has halted a num. ber of these probes but because it reveals much about the kind of games Nixon's legal troops have played with our system of laws and the criminal process in particular.
The Omnibus Crime Control and Sale Streets Act of 1968 unequivo. cally prohibits prosecutor froni ask. ing questions of grand jury witnesses if the questions are derived from electronic surveillance conducted in the absence of a properly issued war. rant. Congress made this law, in the words of the Act, "to protect effec. tively the privacy of wire and oral communications, and to protect the integrity of court and administrative proceedings." Of course, it is a rare case when a citizen knows that his conversations have been subjected to illegal surveillance. If there were no way to force the government to admit its wrongdoing, the privacy of citizens and the integrity of the courts would be at the mercy of prosecutorial whim.
abandoned the grand jury, and England, the land of its origin, has been operating without it since 1933.
A society plagued by complex and secretive criminal activity must have some form of compulsory process to aid investigation. We would gain nothing by abandoning the grand jury only to be subjected to widespread searches, with or without war. rants, and more spies and informers.
or do I think we would gain much by eliminating the people's panel and simply giving the prosecutor its powers.
The most serious obstacle to aboli. tion of the grand jury is the Fifth Amendment itself, which requires in dictment by grand jury in serious cases in the federal system. I think anyone who has observed recent incursions on our civil liberties will agree that this is not a good time in our history to invite a free-for-all over whether to retain certain provisions of the Bill of Rights. But if we must retain the grand jury, it is essential that we find ways to stop the process that has made it a means of harassing and intimidating political activists. The people's panel has been trivialized by being made a subagency of the FBI. Increasingly this undermines the integrity of the rest of the criminal process. If we cannot reverse the trend, then serious de bate about abolishing the grand jury will be in order.
nioning his family and friends tc appear before ret grand jurv proceedings. dubtle form of punishment, it reached a peak when Ells berg's former wife #ita purettadel to Ir-tily ly the premier that her son would then not have to appear: bul #lou days later, Ellsberg lifternstar-old son was cried with a subpurna at 7:30 4.11., requiring his appearance before the grand jury just tuo lout later.
OVERSI ATE TINE CASE to argue, Is some do te the grand jury has only recently been politicized, or that it served its constitutional purpose of safeguarding the people from repressively motivated prosecutions until the Nixon Administration took it over. Cases in which grand juries actually exercised their inherent power to protect political minorities were important in our tradition but were, in fact, rather rare. Grand juries have always served the interests of which ever political element could control them. Where grand jurors' sympathies were with the patriot faction, as in pre-Revolutionary Massachusetts, they frustrated the Crown's efforts to punish radicals. In other col. onies, where they were sympathetic to Royal officialdom, they served Royal interests well. The image of the grand jury as a shield, important though it was in the minds of the framers of our Constitution, was based on a mythology of sorts. The problem is not that the grand jury has ceased to be what it never actually was. It is that prosecutors who have repressive purposes in mind are vir. tually unchecked in abusing the pan. el's compulsory process and its rule of secrecy.
Some lawyers argue that the grand jury is so prone to abuse that it should be abolished. Federal prosecutors argue that even if grand jury power is abused by irresponsible pros. ecutors in some political cases, they would be unable to enforce the laws against rovironmental pollution, antitrust offenes, police corruption. narcotics smuggling, curities fraud, and organized crime if they could not subpow'na hooks and record and compreel the sworn testimony of wit. ner. But if it is necessary for pros. prutors to have or to borrow these powers, why must we have the ex. pensive and cumbersome pretense of a people's panel? Half the states have
not change grand jury behavior'un. less grand jurors were disposed to assert themselves. One of the most di-tressing aspects of today'- panels is the apathy and lack of interest er hibited by the members, who have been seen reading newspapers, play. ing cards, and gossiping while pros. ecutors abuse their special prerog. atives. Mans grand jurors are simply unaware of their right to call wit nesses and to ask questions on the own initiative, li woull lirip in judge gave newly empanell granul jurie- a better sense of their poner and duties. Peter Weiss of the Crn. ter for Constitutional Rights has sug. gested that grand jurors might be shown a training film of the kind used in industry and in the military. Such a film could depict grand jurors taking an active part in deliberations and questioning, and could demonstrate dramatically the kind of pros. ecutorial abuses that turn the grand jurors' power to repressive ends.
In New York, a pamphlet is given to each novice grand juror, telling him of his right to call witnesses and to ask relevant questions. But prosecutors can, and often do, simply say that the request is irrelevant. They are considered to be the experts, and their decision, whatever its merits, is not taken to any higher authority for review.
Occasionally we get a hopeful sign of change. In California recently, as three grand jurors walked out to protest a prosecutor's behavior, they were cheered by some of their fellow panelists. One of the three told reporters: "The grand jury did not objectively and thoroughly examine the charges made. We were unable to ask the proper questions of witnesses, unable to hear all the evidence we should have and did not deliberate the way we should ... We did not act independently of the District Altorney."
This panel had just returned a conspiracy indictment in the case of the slayings of guards and inmates dur. ing the attempted prison rape hy George Jackson at San Quintin. The rebellious jurur said he believe some prisoners should have been indicted. but that the "conspiracy indictments are very shabby instrument of jus tire." The proxrutor, lw folt. 11 the conspiracy charge for no reason pucrpt to drag into the cae pris rss against whom he had no real ori. dence. The grand juror complained
when I were presented with simple accusa tions rooted in the context of their own community life, they could, and sometimes did, launch their own investigations, independently judge the substance of the charge, and view critically the motivation of the
pros. ecutor. Today, grand juries disagree with prosecutors in less than 2 or 3 percent of the cases presented to them. An ability to act and think for itself was possible only so long as the grand jury could operate in. dependently from the legal expertise of the prosecutor and the technological expertise of the FBI. Without investigators, stenographers, clerks, and legal experts of its own, the grand jury must rely, for the basis of an informed judgment, on the re. sources of the very same authorities whose judgment it might otherwise control.
An abundance of resources would
that lie and other jurors had been tinue to be used to probe the beliefs They need not be intring nt. a- the forure tu hangle with the proserutor and associations of private citizens. rules of evidence at trial, but a grand er blieir right to ask their own however, the courts may begin to jury witness today is not rien per puedions and that the procuitor had leselop restrictions on the scope and mitted to ask for an explanation of shilince at first to procluce for them nature of questioning, similar to those the releasantywi a question. This mu-l the mig umler which he claimed ilerived from the First Amendment chungr, as it lor-1 -tep. The grand tanpa Jardim hidl a pistol. to restrict the witch-hunting legisla- jury - job is to evaluate the ulli ien.
This sort of rhellion against pros. tive investigating committees of the cy of eridenir. Although buat-ayesi. asubial high-handedness is unusu. 1950s. There has already been prom- (lence cannot normally lar in a 1. llu lry composition of most i-ing movement in this direction. trial, an indietwat may be based smlo hellre the proscutor free Prosecutors must be prevented entirely on hear. So lung in se reign. Although lection methods from using the panel's compulsory permit thr, it will be illuult to come hill amely from jurisdiction to ju. process to gather evidence and to in- trol the poorsny of a prosretion, they tend to result in uni terrogate increasingly remote associ- ecutor 'n interrogations. In anachro formi mielelly-aged, midulle-cla-s, ates and friends of those they have nisill stands in the way of reform: while granit juries. Crand jurors are already indicted, even long after in- the original grand juries in England often the friends and relatives of dictments have been handed down. were called upon to help the King thu nhw run the criminal process. The potential for political abuse in because they were familiar with lo and therefore unlikely to find fault this practice is clear from the Harris- cal incidents, hear-ay, and rumors. with any law enforcement authority, burg grand jury's investigation and But the grand jury today is no longer In this California carr. rebellious the Boston and Los Angeles grand a group of neighbors pooling their gran jurors were selected under a juries' investigations in the Ellsberg personal information about the posme prorrelure that put the wlection case. We cannot, I fear, rely on the sible misdeeds of others. It should process in the hands of various rivir gooul faith of the Justice Department be permitted to indlict only upon organizations in the county.
in-trad to abandon this practice. In argu- competent evidence, and the pros. of local judges'.
ment before the Boston Court of Ap- ecutor's inquiry should be similarly Reform of the composition and peals on Ellsberg's motion to close restricted. When he seeks to invoke selection of grand juries will not be loun the post-indictment grand jury the court's power to put recalcitrant easy. There has been some move investigation, lawyers from the Jus- witnesses in jail, he should show that ment on the federal level: the Jury lice Department argued that they the information he seeks is relevant Selection and Service Act of 1968 were investigating other crimes, not
and proper. requires random selection of grand Ellberg's. Before the Supreme Court, Perhaps we should require a pros. jurors from voter lists. But many honrier, the Solicitor General of the ecutor to defend his exercise of the state grand jury lists are still made l'nited States argued against delay subpoena power. Whether a subpoeup by sheriffs, judges, and commis- of the Boston proceedings because na is issued in the name of the consioners, and the panels they choose the prosecution was gathering infor- vening court, the prosecutor, or the remain grossly unrepresentative of mation for use in the upcoming Elly. grand jury itself, present practice efthe community. Grand jury associ- berg trial!
fectively makes its issuance a matter itions composed of past and present We also need some rules of evi- of the prosecutor's discretion. This members meet regularly in many ju. dence to confine prosecutors' ques. has been transformed into a license risdictions: they can be repetest to tions to legitimate areas of grand to harass dissenters. Courts should battle any wrious reform effort jury concern. It is because the pros require a prosecutor to show somethrough their mwspapers and lobby- ecutor can cast his net so widely that thing like probable cause before per. ing efforts.
he can probe innocent movements mitting him to issue a subpoena. A I think grand jury reform might and conversations, make dissent and subpoenaed witness should then be lor more profitably pursued piece. political organization seeni criminal, entitled to force the prosecutor to wal. in the courts, in the problems and interfere with the privacy and satisfy a judge that he is actually in. arin.log furring a rerramination of confidentiality of the personal anal seatigating the commission of sonu the power and procedures that lend professional relationships that are vi- crime. It would help if a prosecuThomslurfo rather effortle** pros ial to the nation's political life. The tor were required to file a memoran** utorial abuse
prosecutor should at least be required dum privately with the purt, before to demonstrate, to a judge, that he launching a grand juri probe, et
has grounds to believe the person he ting forth what he is seeking and E nur First Ameneinvent pro- wants to question is in some way re- what lu alreally kns. Such a doc.
from lated to actual criminal activity. A ument would be insaluable in help Fastot and intimidation by abuse prosecutor should not be allowed to ing a judge skride whether or not " tha puna piwer! Is there a go fishing" in First Amendment wa- the prosecutor in abusing the peoTirmwnment as well as a Filth ters unless he can show there is some ple: panel when a witness balks at \nwndurnt quivilege not to lentily? thing there he needs. I do not believe treponding to a puna or to a Hi, what is it rutrnt?
such a requirement would hamstring quration 1. in other areas of the The Supreme Court has rerntly legitimate grand jury investigations, criminal process, the prinerutoradix
jeb a journali-t's effort to derive where a crime has been committed. trionan poni't muc lo controller i privilege not to testifs from the We would be far better off if pros. or it will bene illegitimately to win livelmendment's guarantee of free. ecutors were restrained by rules re. kle out the politicalls unpopular for dont of the press, if the panrls con- quiring relevancy in questioning. abu-ist anul reprezive treatment.
How the Grand Jury's Traditional Protection of the Individual was Corrupted to Funnel the Fruits
of Illegal Surveillance into the Centralized Intelligence of Nixon's 'Besieged' Administration From the Watergate Perspective
FRANK J. DONNER & RICHARD L LAVINE
did it conceals the deeper issue of why it was done. Ia American public life we almost invariably reduce power conflicts to issues of due process, of individual rights; the one is typically abstract, and the other more accessible because it is specific and "human." Finally, a need for stability, a desperate dependence on institutional order and continuity, makes us reluctant to confront claims of usurpation of power, as though the very recognition of its possibility would deny meaning to the American experience.
But one can hardly sweep under the rug the wealth of evidence, uncovered by Watergate, of the growth of Caesariam in the White House, a phenomenon made vigible by the President's plusb accouterments of power and the use of his office for personal gain. The meat for this Caesar, the means by which he has sought to consolidate his power, is political intelligence, a system of surveillance and related practices ranging from informen and wiretapping to ubotage, break-ins, mail interception and dossiers. From almost the start of his first term, Nixon initiated a series of moves designed to seize con trol of the intelligence capability of the nation. Beginning in 1939, wben the FBI was first given domestic intelligence jurisdiction, the intelligence community in this country had boca highly diffused, with a variety of isstitutional buses and haphazard coordination. This do ceatralization reduced the efficiency of domestic survell. lance and postponed the inevitable showdown with liber. tarlan forces. In the same period a democratic consdtuency had on the federal level (urban and state units are another story) imposed jurisdictional limit on the scope of intelligence practices and targets; these restraints, though precarious and frequently ovaded, were still no mean achievement when one rocalls the struggle to reia in the survelllance excenes of the Defense Department, the CIA and the FBI. But the lack of eftective and publicly responsive facilities to monitor essentially secret operations left open the danger of abuses, periodically axposed by alert Congressmen, detecting whistleblowers and the media.
What President Nixon undertook was nothing less than the relocation and centralization of the entire lotelligence establishment in the White House. More, be moved to eliminate all the bitterly won jurisdictional restraints on domestic espionage. And the justification for this no-holds-barred secret police apparat was aational security, a goal which assertedly absolved the President from responsibility to the law or, save by impeachment, to the Constitution and beyond the reach of the courts. When in 1972 the Supreme Court unanimously rejected these expansive claims as a justification for do mestic intelligence practices, the Administration simply renewed its contentions about the very same practices, but now under the warrant of "foreign intelligence."
The main leverage in the campaign to take over political espionage was the alleged need to refocus intelli
FROM THE WATERGATE PERSPECTIVE
KANGAROO GRAND JURIES
TRAN J. DONNER U RICHARD L LAVIIE
For two generations, the American imagination has either denied the possibility of fascism in this country or, while conceding its possibility, has been unable to project a convincing description of how fascism may come, to identify the institutional stress points, and describe its potential constituency. Watergate teaches that, for all our constitutional and political restraints on the abuse of power, if a police state comes into being here it will surely rest on an all-powerful Presidency in control of a centralized political intelligence apparatus. In its January 3, 1972 issue, The Nation published "The Grand Jury Network" (Donner and Cerruti), a report on the growing use by the Department of Justice of federal grand juries to curb political dissent. Events of the past two years have substantiated the earlier contention that this distortion of the grand jury function is part of a master plan to attack political opposition through a new contralized intelligence system. More specifically, the Internal Security Division (ISD) of the Justice Department has used the traditional accusatory function of the grand jury as a cover for:
(1) A secret White House-sponsored network for the systematic collection of political intelligence by illegal mcans and for purposes unrelated to law caforcement.
(2) The laundering or legitimizing through grand jury interrogation of such tainted evidence.
(3) The development of evidence through the grand jury process to support an indictment already handed up - form of pretrial discovery not permitted in criminal cases.
(6) The use of civil contempt, not to obtain testimony but solely to punish uncooperative witnesses. La the past eighteen months, twenty-one individuals have, after grants of immunity, been jailed for contempt.
Specific instances of these practices will be dealt with in a moment, but before revisiting the grand juries we need to look more closely at the roots of these abuses, now laid bare by Watergate.
The enormous range of the Watergate disclosures invites a piecemeal response, and the large patterns thus break down into small clusters of seemingly unrelated events. It is, of course, important to know whether Dean or Ehrlichman is telling the truth, what may be learned from the Presidential tapes, the extent of the President's knowledge of the events, the source of authority for Operation Gemstone. But the concrete question of who
Frank Donner is director of the American Civil Liberties Union research project on political surveillance at the Yale Low School. This study forms part of a book on the subject 10 be published by Holt, Rinehart & Winston in the spring of 1974. Richard Lavine has been active in politics and is now a student at the University of Pennsylvania Law School.
THE NATION/November 19, 1973
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