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Division of the Department of Justice.

-Last July, on the day the Democratic National Convention began in Miami, twenty-five members of the Southern leadership of the Vietnam Veterans Against the War were subpoenaed five hundred miles to the Florida Panhandle, to appear before a Federal grand jury in Tallahassee. The group was compelled to remain in Tallahassee under subpoena for the entire week, in what was widely regarded as a dragnet political grand jury convened to embarrass both the anti-war movement and the Democratic Convention.

-19 year old Leslie Bacon was arrested in Washington, D.C. in April 1971 as a material witness in connection with the bombing of the Capitol. But then she was spirited away to a grand jury investigation in Seattle, where as it turned out over days of intensive questioning, the Federal prosecutors were far more interested in the Mayday Demonstration in Washington that spring and her private beliefs and political associations and unusual life style, than they were in the Capitol bombing. No one denies that the bombing of the Capitol should be vigorously investigated, but it is difficult to believe this goal was advanced at all in Seattle by the peculiar interest of this grand jury prying into the private life of a teenage girl.

-In Tuscon, Arizona, in October 1970, after an indictment had been returned in a case involving the purchase of explosives by a Weatherman, the Justice Department's chief prosecutor subpoenaed five young members of a commune in Los Angeles to appear before the grand jury. The subpoenas served no obvious law enforcement purpose, although one of the witnesses was known to have a tenuous connection with the defendant in the case. At first, all the witnesses resisted. They were jailed four months for contempt. When the grand jury expired a new grand jury was convened, and the witnesses were again subpoenaed and cited for contempt. Faced with the prospect of 18 more months in jail, most of them capitulated and agreed to testify.

-In the Malone case in San Francisco in November 1972, Robert Meisel and Barbara Jean Fitch were imprisoned for civil contempt for refusing to testify in a grand jury investigation into the shipment of arms to Northern Ireland, apparently unrelated to the actions of the grand juries in Fort Worth and New York City. Meisel was a house painter living in Malone's home. Fitch was the Malone's baby sitter, caring for the family's seven children and also living in the house. At the time Meisel and Fitch were cited for contempt, the

grand jury had already returned two indictments against Malone. Yet, the questions they refused to answer were directed almost entirely against Malone, in circumstances strongly suggesting that the prosecutor was seeking to bolster his case for trial. Moreover, Malone has now pleaded guilty. Yet the Justice Department persists in seeking further testimony from these two witnesses-one his close friend, the other his baby sitter. The witnesses are now free on bail granted by the Supreme Court, pending resolution of this and other legal issues raised by their imprisonment.

-In Harrisburg, Pennsylvania the grand jury that indicted Philip Berrigan and Elizabeth McAlister in January 1971 for plotting to kidnap Henry Kissinger and bomb the Washington steam tunnels was called back into session, and 34 additional witnesses, including priests and nuns, were subpoenaed in an obvious effort to bolster the prosecutor's flimsy case for trial. At the end of April, a superseding indictment was returned with new counts inserted, tailored to enable a jury to convict the defendants without proof of the bomb and kidnap plot. Eventually, the defendants were convicted, but only for the of fense of smuggling letters out of a Federal penitentiary, an offense for which they almost certainly would not have been indicted, absent the highly charged political atmosphere of the case.

-One of the most serious of all the grand jury abuses, and certainly the most highly publicized, has been the barrage of grand jury subpoenas sprayed on news reporters in recent months around the country, to compel disclosure of their sources and other information long thought protected by the First Amendment. Time and again, like the Fort Worth Five and many other grand jury witnesses, reporters have chosen to stand on their rights and go to jail, rather than yield to the pressure of the government's intrusive questions, or allow themselves to become unwilling investigators for the prosecutor's office.

-Even Congress itself is not immune from the encroaching tide of executive abuse, as we learned last year when an aide to Senator Mike Gravel was subpoenaed to appear before a Boston grand jury investigating the Pentagon Papers Case. The grand jury investigating this case in Los Angeles was also notable for its own abuses, not least for the subpoena served on Daniel Ellsberg's 15 year old son at 7:30 in the morning, demanding his appearance before the grand jury two hours later that very day.

And so it goes, as the Special Litigation Section of the Internal Security Division plies its trade, with its small army of grand inquisitors

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barnstorming back and forth across the country, hauling witnesses around behind them, armed with dragnets of subpoenas and immunity grants and contempt citations and prison terms. These tactics are sufficient to terrify even the bravest and most recalcitrant witness, whose only crime may be a deep reluctance to become a government informer on his closest friends or relatives, or an equally deep belief that the nose of the United States Government has no business in the private life and views and political affiliations of its free citizens.

It is a tribute, I think, to the real vitality of the American political spirit that so many citizens today are willing to sound the alarm and stand their ground and endure the pain of prison, rather than forego these basic rights they cherish.

To some extent, the exalted historical role of the grand jury as the protector of the citizen is myth. From its beginning in medieval England, the grand jury was frequently a pawn in the struggle between the Crown and the Church. In modern times, grand juries have often failed in their role as guardians of the people. As one who has served as a prosecutor in the Commonwealth of Massachusetts, I know how easy it is for the grand jury to slip into the passive role of a rubber stamp for the prosecutor, a compliant appendage to the local District Attorney's office instead of the vigilant people's guardian it ought to be.

By the end of the nineteenth century in Britain, the abuses of the grand jury had come to outweigh its protective features by so wide a margin that its role was sharply curtailed. It was later abolished outright in Britain, and a similar step was recommended for the United States by the Wickersham Commission in 1933. Today, in Britain and in nearly half our own states, prosecutions are now commenced by filing criminal informations, with a preliminary hearing replacing the grand jury as the guardian of the citizen's rights. Perhaps that is the route our own Federal legal system will eventually have to take, if the modern abuses prove too great, if we fail in our efforts to preserve the valid purpose the grand jury is supposed to serve.

In a sense, of course, the seeds of the current problem have been with us for many years. The question is why they have sprouted so suddenly, so oppressively, and so massively.

To be sure, immunity and civil contempt are nothing new in American criminal law. As conventional grand jury tools, they are weapons of longstanding use by generations of Federal, State and local prosecutors in this country. What is new today is the enormous growth of

these weapons, and the manner in which recent well-intentioned crime control legislation has been twisted to unintended ends.

The novel, wide-ranging so-called "use" immunity power conferred by the Organized Crime Control Act of 1970 appears to be responsible for almost all of the current problem. Indeed, the promiscuous and wholesale current application of this power threatens to make a shambles of the Fifth Amendment's protection against self-incrimination, in a way that the old and far more sparingly used "transactional" immunity never even remotely approached.

In part, of course, Congress is to blame for the present crisis, because Congress failed to recognize the sinister potential abuses lurking beneath the innocuous surface of the 1970 law. In part, the Department of Justice is to blame, for lulling Congress not only with excessive protestations of the need for this new Act as a law and order tool, but also with equally excessive and wholly unfulfilled promises of good behavior if only the Act would pass...

There are a number of directions that immediate reform can take in Congress, directions that will in no sense hamstring law enforcement in legitimate investigations of any crime, but which will provide needed new protection for innocent citizens against the abuses now so prevalent:

-To prevent abuse of grand jury venue, Congress can require a prosecutor to justify the forum he has chosen, when a witness demonstrates that his appearance at a distant location will impose substantial or unnecessary hardship on himself or on his family. I believe that in such cases, a witness should be entitled to a public hearing in the district of his residence, on a motion to quash the subpoena, and that a judge should be entitled to take into account such factors as the significance of the overt acts alleged to have taken place in the jurisdiction, and whether related investigations are being carried out or could easily be carried out in locations more convenient than the one chosen by the government.

-To prevent abuse of civil contempt as a device to punish recalcitrant grand jury witnesses instead of to obtain their testimony, Congress should impose a firm upper limit of six months on any term of imprisonment for such contempt. And, at any date prior to that time, a court should be entitled to vacate an order of contempt, upon a showing that, by the preponderance of the evidence involving changed circumstances in the case, the primary purpose of the imprisonment has turned punitive.

-To prevent abuse of the grand jury as a device to secure evidence

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against defendants already indicted, Congress should allow a court to quash a subpoena or vacate an order of contempt against a witness, upon a showing that there is no other substantial purpose for which the testimony of the witness is being sought.

These three suggestions would be of obvious benefit in cases like the Fort Worth Five, but they are only the beginning of the reforms we should seek. Many others also come to mind:

-To insure the overall fairness of the grand jury, a witness should be entitled to challenge the composition of the body on grounds that it is not truly representative of the community from which it is

drawn.

-"Use"'immunity should be available only for a narrow range of specified offenses, not for every criminal investigation that happens to catch a prosecutor's fancy.

-A witness should be entitled to the assistance of counsel in the grand jury room. This change would involve no disruption or delay in current grand jury operations. In fact, it might even expedite them, since in most jurisdictions today, a witness is entitled to leave the grand jury room after every question in order to consult with counsel.

-The Department of Justice should be required to file detailed reports with Congress and the courts each year, describing the investigations undertaken, the grants of immunity used, the contempt citations imposed, and other appropriate measures of grand jury activity.