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 FBI office in Long 1-land. Witnesses reported that while the jurors read magazines and newspapers, the Justice Department prosecutor reg ularly excused himself to confer with agents of the FBI. Over and over again he returned to ask the same questions that the FBI had been asking 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 its powers. This distresses me both because the FBI has 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 sensational charges of a bombing kidnaping plot, he was immediately challenged to substantiate his charges. Hoover's superiors in the Justice Department viewed the speculative letters exchanged between Sister Eliz abeth McAlister and Father Philip Berrigan, and the testimony of agent provocateur Boyd Douglas, insuffi cient to support a criminal charge. They had already refused even to convene a grand jury. But Hoover's public outburst forced his titular superiors to act. The sinister picture he painted was given an easy kind of legitimacy by indictments secured from an obedient federal grand jury in Harrisburg on the basis of the

same testimony 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 two 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 witnesses were sentenced for refusing to respond to Guy Goodwin's expedi tions. Their refusal was not based on fear of prosecution the noncooperators included those to whom Good but on win had granted immunity 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.

T IS WORTH looking more closely at the wiretapping objection, not so much because it has halted a number 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 Safe Streets Act of 1968 unequivo cally prohibits prosecutors from ask ing questions of grand jury witnesses if the questions are derived from electronic surveillance conducted in the absence of a properly issued warrant. 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 cit izens and the integrity of the courts would be at the mercy of prosecutorial whim.

One of the first witnesses subpoenaed, granted immunity, and compelled to testify before the Harrisburg grand jury was Sister Joques Egan. She was given instructions such as. "Relate all conversations you have had in the past year with Sister Eliz abeth McAlister." Minutes after she refused to answer questions that she claimed were based on illegal wiretapping, she was held in contempt and jailed. On her appeal the Justice Department did not deny the charge but argued that she 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 based on illegal wiretapping. The Justice Department argued that it would unreasonably delay grand jury delib erations if a witness could force a hearing merely by alleging she had been the target of illegal surveillance. The appellate judges had a simple 211-347 "We assume that the Goverment will attempt to conduct surveilla 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 Department 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 grand jury game.

The record of the Justice Depart ment's use of the grand jury in the Ellsberg case is itself a catalogue of the abuses to which the people's panel has been subjected. After pub lication of the Pentagon Papers, federal investigators harassment of Daniel Ell-berg and his neighbors. tradesmen, and acquaintances was supplemented by subpoenas

moning his family and friends to ap pear before secret grand jurv proceedings. A subtle form of punishment, it reached a peak when Ellsberg's former wife was persuaded to testify by the promise that her son would then not have to appear, but a few days later, Ellsberg's fifteenyear-old son was served with a subpoena at 7:30 A.M., requiring his appearance before the grand jury just two hours later.

OVERSTATES THE CASE to argue, as some do, that 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 pow er 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' sympa thies were with the patriot faction, as in pre-Revolutionary Massachu setts, they frustrated the Crown's ef forts to punish radicals. In other colonies, 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 virtually 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 prosecutors in some political cases, they would be unable to enforce the laws against environmental pollution, antitrust offenses, police corruption. narcotics smuggling, securities fraud, and organized crime if they could not subpoena books and records and compel the sworn testimony of witnesses. But if it is necessary for pros ecutors to have or to borrow these powers, why must we have the expensive and cumbersome pretense of a people's panel? Half the states have

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. Nor 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 indictment 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 polit ical 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 a serious debate about abolishing the grand jury will be in order.

IN THE PAST, when grand jurors

were presented with simple accusations 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 prosecutor. 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 independently from the legal expertise of the prosecutor and the technolog ical 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 resources of the very same authorities whose judgment it might otherwise control.

An abundance of resources would

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not change grand jury behavior unless grand jurors were disposed to assert themselves. One of the most distressing aspects of today's panels is the apathy and lack of interest exhibited by the members, who have been seen reading newspapers, playing cards, and gossiping while pros ecutors abuse their special prerog atives. Many grand jurors are simply unaware of their right to call wit nesses and to ask questions on their own initiative. It would help if judges gave newly empaneled grand juries a better sense of their powers and duties. Peter Weiss of the Center 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 pros ecutors 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 At

torney.

This panel had just returned a conspiracy indictment in the case of the slayings of guards and inmates dur ing the attempted prison escape by George Jackson at San Quentin. The rebellious juror said he believed some prisoners should have been indicted, but that the "conspiracy indictments are very shabby instruments of jus tice." The prosecutor, he felt, used the conspiracy charge for no reason except to drag into the case prisoners against whom he bad no real evidence. The grand juror complained

that he and other jurors had been forced to haggle with the prosecutor ver their right to ask their own questions and that the prosecutor had declined at first to produce for them the wig under which he claimed George Jackson hid a pistol.

This sort of rebellion against prosecutorial high-handedness is unusu af The very composition of most panels ensures the prosecutor free reign. Although selection methods vary widely from jurisdiction to juasdiction, they tend to result in uniformly middle-aged, middle-class, white grand juries. Grand jurors are often the friends and relatives of those who run the criminal process. and therefore unlikely to find fault with any law enforcement authority. In this California case, rebellious grand jurors were selected under a new procedure that put the selection process in the hands of various civic organizations in the county, instead of local judges'.

Reform of the composition and selection of grand juries will not be easy. There has been some movement on the federal level: the Jury Selection and Service Act of 1968 requires random selection of grand jurors from voter lists. But many state grand jury lists are still made up by sheriffs, judges, and commissioners, and the panels they choose remain grossly unrepresentative of the community. Grand jury associations composed of past and present members meet regularly in many jurisdictions: they can be expected to battle any serious reform effort through their newspapers and lobby. ing efforts.

I think grand jury reform might be more profitably pursued piece meal, in the courts, as the problems arise, by forcing a reexamination of the powers and procedures that lend themselves to rather effortless pros ecutorial abuse.

THE First Amendment pro

Duet political activists from ha

rassment and intimidation by abuse of the subpoena power? Is there a First Amendment as well as a Fifth Amendment privilege not to testify? If so, what is its extent?

The Supreme Court has recently rejected a journalist's effort to derive a privilege not to testify from the First Amendment's guarantee of freedom of the press, If the panels con

tinue to be used to probe the beliefs and associations of private citizens, however, the courts may begin to develop restrictions on the scope and nature of questioning, similar to those derived from the First Amendment to restrict the witch-hunting legisla tive investigating committees of the 1950s. There has already been promising movement in this direction.

Prosecutors must be prevented from using the panel's compulsory process to gather evidence and to interrogate increasingly remote associates and friends of those they have already indicted, even long after indictments have been handed down. The potential for political abuse in this practice is clear from the Harrisburg grand jury's investigation and the Boston and Los Angeles grand juries' investigations in the Ellsberg case. We cannot, I fear, rely on the good faith of the Justice Department to abandon this practice. In argument before the Boston Court of Appeals on Ellsberg's motion to close down the post-indictment grand jury investigation, lawyers from the Justice Department argued that they were investigating other crimes, not Ellsberg's. Before the Supreme Court, however, the Solicitor General of the United States argued against delay of the Boston proceedings because the prosecution was gathering infor mation for use in the upcoming Ells berg trial!

We also need some rules of evidence to confine prosecutors' ques tions to legitimate areas of grand jury concern. It is because the pros ecutor can cast his net so widely that he can probe innocent movements and conversations, make dissent and political organization seem criminal, and interfere with the privacy and confidentiality of the personal and professional relationships that are vital to the nation's political life. The prosecutor should at least be required to demonstrate, to a judge, that he has grounds to believe the person he wants to question is in some way related to actual criminal activity. A prosecutor should not be allowed to go fishing" in First Amendment wa ters unless he can show there is something there he needs. I do not believe such a requirement would hamstring legitimate grand jury investigations, where a crime has been committed.

We would be far better off if pros ecutors were restrained by rules requiring relevancy in questioning,

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They need not be as stringent, as the rules of evidence at trial, but a grand jury witness today is not even permitted to ask for an explanation of the relevancy of a question. This must change, as a first step. The grand jury's job is to evaluate the sufficiency of evidence. Although hearsay evidence cannot normally be used in a trial, an indictment may be based entirely on heatsay. So long as we permit this, it will be difficult to control the scope and relevancy of a pros ecutor's interrogations. An anachronism stands in the way of reform: the original grand juries in England were called upon to help the King because they were familiar with lo cal incidents, hearsay, and rumors. But the grand jury today is no longer a group of neighbors pooling their personal information about the pos sible misdeeds of others. It should

be permitted to indict only upon competent evidence, and the prosecutor's inquiry should be similarly restricted. When he seeks to invoke the court's power to put recalcitrant witnesses in jail, he should show that the information he seeks is relevant and proper.

Perhaps we should require a prosecutor to defend his exercise of the subpoena power. Whether a subpoena is issued in the name of the convening court, the prosecutor, or the grand jury itself, present practice effectively makes its issuance a matter of the prosecutor's discretion. This has been transformed into a license to harass dissenters. Courts should require a prosecutor to show something like probable cause before permitting him to issue a subpoena. A subpoenaed witness should then be entitled to force the prosecutor to satisfy a judge that he is actually investigating the commission of some crime. It would help if a prosecutor were required to file a memorandum privately with the court, before launching a grand jury probe, setting forth what he is seeking and what he already knows. Such a doeument would be invaluable in help ing a judge decide whether or not the prosecutor is abusing the people's panel when a witness balks at responding to a subpoena or to a question As in other areas of the criminal process, the prosecutor's dise cretionary power must be controlled or it will be used illegitimately to single out the politically unpopular for abusite and repressive treatment.

FRANK J. DONNER & RICHARD I. LAVINE

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 centralized 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 means and for purposes unrelated to law enforcement.

(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 -a form of pretrial discovery not permitted in criminal

cases.

(4) The use of civil contempt, not to obtain testimony but solely to punish uncooperative witnesses. In 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 Law School. This study forms part of a book on the subject to 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

did it conceals the deeper issue of why it was done. In 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 Caesarism in the White House, a phenomenon made visible by the President's plush 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 informers and wiretapping to sabotage, break-ins, mail interception and dossiers. From almost the start of his first term, Nixon initiated a series of moves designed to seize control of the intelligence capability of the nation. Beginning in 1939, when the FBI was first given domestic intelligence jurisdiction, the intelligence community in this country had been highly diffused, with a variety of institutional bases and haphazard coordination. This decentralization reduced the efficiency of domestic survelllance and postponed the inevitable showdown with libertarian forces. In the same period a democratic constituency had on the federal level (urban and state units are another story) imposed jurisdictional limits on the scope of intelligence practices and targets; these restraints, though precarious and frequently evaded, were still no mean achievement when one recalls the struggle to rein in the surveillance excesses of the Defense Department, the CIA and the FBI. But the lack of effective and publicly responsive facilities to monitor essentially secret operations left open the danger of abuses, periodically exposed by alert Congressmen, defecting whistle-blowers and the media.

What President Nixon undertook was nothing less than the relocation and centralization of the entire intelligence establishment in the White House. More, he moved to eliminate all the bitterly won jurisdictional restraints on domestic espionage. And the justification for this no-holds-barred secret police apparat was national 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 domestic 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

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