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The Case of Oscar Lopez Rivera

peoplesThe Case of Oscar López Rivera

Presented at Encuentro Sobre Derechos Humanos en San Juan, Puerto Rico on December 10, 2012 by Jan Susler of People’s Law Office

“The U.S. government categorically denies it has political prisoners in its gulags. It does it primarily to cover up the nefarious, barbaric and even criminal acts and practices it carries out against us and other regular prisoners, and to do it with impunity. It uses the denial as its license to violate our most basic human rights by subjecting us to isolation and sensory deprivation regimens that are nothing less than cruel and unusual punishment. It uses it to hoodwink its own citizens to believe that it doesn’t criminalize dissenters or opponents of its wars and other imperialistic practices. It does it to perpetuate the lie that it is the ultimate defender of freedom, justice, democracy and human rights in the world. And it uses it at times to further criminalize the political prisoners and/or our families and to disconnect us from our families, communities, supporters and the just and noble causes we served and try to continue serving.” -Oscar López Rivera1

Introduction

In the 1960′s and 70′s, the Puerto Rican community in Chicago, like so many other communities in the United States, was rebelling, resisting the violence and brutality of colonialism, racism, and exploitation. Its young leaders sought not only to battle against and expose these evils, but to help the community take control of its institutions, to instill a sense of hope. It was a time when anti-colonial, national liberation movements had prevailed throughout the world2 and anti-imperialist movements were fighting for independence and self-determination. It was a time when young men — including Oscar — were being drafted to fight the Vietnamese people’s war for liberation. It was a time when the Black Panther Party advocated armed self-defense, when police in Chicago assassinated the party’s young leaders.

Men and women such as Oscar López Rivera led these community struggles and were influenced by events, not just in their immediate neighborhood, but in the world, as they founded institutions which continue to serve the community today.

In Puerto Rico during this era, several armed clandestine political organizations formed and carried out actions to protest the presence of United States repressive forces. In the U.S., the FALN (Armed Forces of National Liberation) began during this period. Between 1974 and 1980, the FALN claimed responsibility for bombings of military, government and economic sites, mainly in Chicago and New York, to call attention to the colonial case of Puerto Rico and to demand the freedom of the Nationalist prisoners serving long sentences in U.S. prisons for their pro-independence actions in the 1950′s.3

Arrest and its aftermath

In 1980, eleven men and women were arrested and later charged with the overtly political charge of seditious conspiracy — conspiring to oppose U.S. authority over Puerto Rico by force, by membership in the FALN, and of related charges of weapons possession and transporting stolen cars across state lines.4 Oscar was not arrested at the time, but he was named as a codefendant in the indictment. His co-defendants were sentenced to terms in prison ranging between 55 and 90 years, consecutive to state court sentences for the same underlying conduct. The judge stated his regret that he did not have the power to give them the death penalty.5

In 1981, Oscar was arrested after a traffic stop, tried for the identical seditious conspiracy charge, convicted, and sentenced by the same judge to a prison term of 55 years. In 1987 he received a consecutive 15 year term for conspiracy to escape–a plot conceived and carried out by government agents and informants/provocateurs,6 resulting in a total sentence of 70 years.

Upon arrest, Oscar took the same position his co-defendants had taken, asserting that under international law, U.S. colonial control over Puerto Rico was a crime against humanity,7 that the courts of the U.S. had no jurisdiction to try him as a criminal, and that he should be remanded to an impartial international tribunal to have his status judged. While this position was recognized by international judicial bodies and other international fora8, the U.S. government refused to recognize it and proceeded to try him for criminal offenses. As his co-defendants had done, he presented no defense and pursued no appeal.

Disproportionate sentences

Oscar, like all Puerto Rican independentistas in U.S. custody, is punished for his beliefs and affiliations, for who he is, not for any act he committed. Government statistics evidence that those who commit non-political criminal offenses receive far lower sentences than do independence fighters. For example, in 1981, the year Oscar was sentenced for seditious conspiracy, the average federal sentence for murder was 10.3 years.9 Though he was not accused or convicted of hurting or killing anyone, his sentence was more than five times the average sentence for murder.

His 15 year sentence for conspiracy to escape is even more disproportionate. Conspiracy to escape is apparently so rare that the government doesn’t even maintain statistics, so we are left to compare his sentence to those for actual escape: Oscar’s sentence is more than 8 times longer than the average sentence for escape.10

Not surprisingly, Oscar has been held in prison far longer than those convicted of violent felonies. By the mid 1990′s, the average time actually served in prison by those convicted in federal court of violent felonies was just above four years;11 by the late 1990′s, for federal convictions of murder/manslaughter the average time served was 10.8 years.12

Oscar’s imprisonment for more than 31 years in prison gives him the unique and unenviable distinction of being the longest held Puerto Rican political prisoner in the history of the nation’s independence movement.13

Politically punitive treatment

The U.S. has not been satisfied with merely incapacitating Oscar by holding him all those years in prison. Prison officials immediately labeled him a “notorious and incorrigible criminal” and the FBI, using informants/provocateurs, targeted him in attempts to further criminalize him and legitimize his transfer to the most maximum security prisons, where he was subjected to isolation and sensory deprivation, labeled as a predator, and “the worst of the worst.”

For more than 12 years, he was held at the notorious high security U.S. Penitentiary at Marion, Illinois, and its successor, the Administrative Maximum Unit [ADX] at Florence, Colorado. At ADX, Oscar writes, “some of us were subjected to a sleep deprivation regimen that was pure and simple torture. I experienced it for 58 days and my sleeping patterns were so badly damaged that I still have serious problems sleeping.”14

At Marion and ADX, he was also the target of constant harassment such as cell searches, confiscation of reading and art materials, and placement in hot cells where there was contraband in order to issue us infractions, send us to the hole, and force us to start the “stepdown” program [to win transfer to a lower security prison] all over again.15

The extreme, prolonged isolation, which causes psychological and physical deterioration, has been widely condemned as violating international human rights standards.16 Indeed, the United Nations Special Rapporteur on Torture has declared that “segregation, isolation, separation, cellular, lockdown, Supermax, the hole, Secure Housing Unit… whatever the name, solitary confinement should be banned by States as a punishment or extortion technique,” and that “indefinite and prolonged solitary confinement in excess of 15 days should also be subject to an absolute prohibition.”17

In 1998, after more than 12 years in total isolation — with his mental faculties and sense of humor very much intact, and with his self-taught art skills quite honed, despite every effort to break him — he was finally moved to a regular maximum security prison. Prison officials, however, imposed a special condition, requiring him to report his whereabouts every two hours to prison guards. The condition, which was to last for 18 months, has now been in place for a record-breaking 14 years.

In spite of prison policy permitting bedside visits and attendance at funerals, and ignoring letters of support from ministers and elected officials, prison authorities refused to let Oscar attend the bedsides of his ailing mother, father or older sister, and refused to let him attend any of their funerals. During those trying times, prison authorities even refused to allow him to purchase extra telephone time, limiting further his already restricted contact with his family.

Since 1999, the Federal Bureau of Prisons has denied all media requests to interview Oscar, in spite of policy allowing for media interviews of prisoners, in spite of allowing media interviews of other prisoners, and in spite of having allowed Oscar to be interviewed many times previously, without incident. Each rejection has used the identical, unsubstantiated excuse that “the interview could jeopardize security and disturb the orderly running of the institution.” This ban, preventing his voice from reaching his people and his community of supporters, harkens to bans imposed by other governments and regimes once regarded as anti-democratic.18

Since 2011, the government has extended this ban beyond media, rejecting requests by New York elected officials to meet with Oscar. Insisting that they will not be rebuffed, U.S. Congressman Luis Gutiérrez [D- Ill.], who has been allowed to visit, told the press, “He is our longest held political prisoner, and we aren’t going to accept no for an answer.”19

In 2011, the FBI actively intervened to prevent his release on parole, hijacking the hearing by anti-terrorist fear-mongering in order to influence an adverse decision, all the while attempting to humiliate Oscar. Eight prison officials — an exaggerated and intentionally intimidating presence — hovered near a chained and handcuffed Oscar as the hearing examiner improperly allowed live testimony from four people he wrongly characterized as “victims” — a wounded survivor and family members of people who died in a1975 explosion in New York — who spewed FBI-sown hatred in Oscar’s face. Knowing full well that Oscar was never accused or convicted of anything related to the explosion, this testimony formed a significant basis for the parole commission’s order denying parole and ordering a reconsideration hearing 15 years hence, in January 2026, when Oscar will be 83 years old.

The decision to deny parole was immediately denounced by the leaders of Puerto Rico’s political and civil society. Puerto Rico’s non-voting U.S. congressional representative — a supporter of statehood for Puerto Rico — said, “I don’t see how they can justify another 12 years of prison after he has spent practically 30 years in prison, and the others who were charged with the same conduct are already in the free community. It seems to me to be excessive punishment.”20 His concerns were echoed by the president of the Puerto Rico Bar Association, leaders of the political parties, labor and the religious sector.

Although on the eve of his 70th birthday Oscar admits, “the calendar is not my friend,” his resilience, his commitment, and his love are unflagging:

The last 14 years I have spent in this gulag, Terre Haute. And the harassment has not stopped. Several times my art materials have been confiscated or lost, art work destroyed, family visits stopped, and I still have to report to the jailers every two hours. In those 14 years, in spite of all the provocations and harassment, the jailers haven’t been able to accuse me of committing any infractions. But that doesn’t stop them from doing what they’ve been doing to me for the past 31 years. And I’m fairly certain the other political prisoners continue experiencing the same treatment and conditions. It could be argued that government’s denial of our existence has worked. But our wills and spirits are strong enough to continue resisting and struggling.21
Use of pardon throughout the world

The people of Puerto Rico on the island and in communities throughout the U.S. and their allies are waging a campaign asking President Obama to exercise his constitutional power of pardon to commute Oscar’s punitive sentence and grant his immediate release.

The campaign faces a significant challenge, as President Obama has racked up the stingiest record for commutations and pardons in modern history, and the U.S. Department of Justice Office of Pardon Attorney is guilty of rampant racism and misrepresentation in the recommendations it passes along to the president.22

At the same time, governments across the world routinely recognize and utilize the healing power of pardons, especially at holiday times like this. This year, prisoners — including political prisoners in some countries — have already been released in countries large and small, often at the urging of the U.S. government.23 President Obama and his Secretary of State have both recently stated publicly that “a single political prisoner is one too many.”24

Some of the countries that have released prisoners this year include Iran (at least 130 political prisoners),25 Cuba,26 Syria,27 Russia,28 Gambia,29 Ethiopia (1,900 as part of the country’s annual new year’s mass amnesty),30 Thailand,31 Afghanistan,32 Pakistan,33 Azerbaijan,34 and Belarus.35 In Burma, 500 hundred prisoners, including political prisoners, were released in September as the president embarked for the United Nations, describing the move as an effort to “bring tranquility and perpetual peace” to the country.36 Hundreds more were released on the eve of Mr. Obama’s November visit to that country, as part of that country’s efforts to win international favor and lift sanctions.37 In October, Egypt’s new president Mohamed Morsi granted a sweeping pardon to political prisoners which could number as many as 5,000, a concession to the movement which ended the previous regime.38

Mr. Obama, on the other hand, has granted one sentence commutation and 22 pardons,39 not counting the annual Thanksgiving turkeys.40 Half of the people he pardoned never served any time in jail, and most of them had been released years ago.41 He has denied 1,019 pardon petitions.42

Critics, including a lawyer who served as Pardon Attorney under both Republican and Democratic administrations, have widely encouraged him to more liberally exercise the constitutional power he holds.43

Conclusion

There is significant precedent for Mr. Obama to commute Oscar López Rivera’s disproportionate sentence.44 As a result of international campaigns waged by the Puerto Rican people and their allies, three United States presidents commuted the sentences of Puerto Rican political prisoners: President Harry Truman in 1952 commuted the death sentence of Oscar Collazo; President Jimmy Carter in 1977 and 1979 commuted the lengthy sentences of Andrés Figueroa Cordero, Rafael Cancel Miranda, Lolita Lebrón, Irving Flores and Oscar Collazo after they served 25 and 29 years in prison; and President Bill Clinton in 1999 commuted the disproportionate sentences of Oscar’s co-defendants Edwin Cortés, Elizam Escobar, Ricardo Jiménez, Adolfo Matos, Dylcia Pagán, Luis Rosa, Alberto Rodríguez, Alicia Rodríguez, Ida Luz Rodríguez, Alejandrina Torres, and Carmen Valentín, after they served more than 16 and 19 years behind bars, and also commuted the sentence of Juan Segarra Palmer after he served 19 years in prison.

At the time of their release, the president offered to release Oscar on the condition that he serve an additional ten years in prison. The president’s offer, however, failed to include two others.

While Oscar encouraged his compañeros/as to accept the commutation, he decided he could not accept, as he did not want to leave anyone behind. Had he accepted the offer, he would have been released in 2009. Those not included in the offer have since been released on parole, leaving Oscar as the sole remaining political prisoner from that case.

In granting the 1999 commutations, President Clinton determined that “the prisoners were serving extremely lengthy sentences — in some cases 90 years — which were out of proportion to their crimes.”45 The fact that none of them had been convicted of hurting or killing anyone was a factor mentioned by the president:

our society believes … that a punishment should fit the crime. Whatever the conduct of the other FALN members may have been, these petitioners—while convicted of serious crimes — were not convicted of crimes involving the killing or maiming of any individuals.46

President Clinton acknowledged being moved by the support from “various Members of Congress, a number of religious organizations, labor organizations, human rights groups, and Hispanic civic and community groups” along with “widespread support across the political spectrum within Puerto Rico,” and thousands of letters requesting their release.47 He also indicated he was moved by “worldwide support on humanitarian grounds from numerous quarters,” pointing specifically to Former President Jimmy Carter, Nobel Prize Laureate South African Archbishop Desmond Tutu, and Coretta Scott King.48

Those same reasons still obtain, and that support has only continued to grow in the 13 years since Oscar’s co-defendants were released. With your support — and hopefully in short order — President Obama can take his place in this line of history, and grant Oscar’s release, so that he may live out the rest of his years in the comfort and warm embrace of his family and his people.

 

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1. Oscar López Rivera, Statement to the American Studies Association conference October 29, 2012, http://dogmaandgeopolitics.wordpress.com/2012/11/24/oscar-lopez-rivera-statement-to-the-american-studies-association-in-puerto-rico/.

2. “The independence of Ghana (1957), the agony of the Congo (Lumumba was murdered in January 1961), the independence of France’s sub-Saharan colonies following the Gaullist referendum of 1959, finally the Algerian Revolution (which might plausibly mark our schema here with its internal high point, the Battle of Algiers, in January-March 1957, as with its diplomatic resolution in 1962)–all of these signal the convulsive birth of what will come in time to be known as the 60s.” Fredric Jameson, “Periodizing the 60s”, in Sayres, Sohnya, Stephanson, Anders, Aronowitz, Stanley, and Jameson, Fredric, The 60s Without Apology Minneapolis: University of Minnesota Press, 1984, p. 180.

3. “Terrorists without a cause,” Chicago Tribune editorial, March 18, 1980, Sec. 2, p.2. (“Most of the incidents have involved bombs, fortunately so placed and timed as to damage property rather than persons…But again the terrorists were out to call attention to their cause rather than to shed blood.”).

4. United States v. Carlos Alberto Torres et al., No. 80 CR 736 (N.D. Ill.).

5. At the sentencing hearing, which took place soon after the holiday marking George Washington’s birthday, Federal judge Thomas McMillen made the following retort to an observation by one of the prisoners about the irony of the occasion: “You mentioned George Washington. You know, if George Washington had been captured by the British during the American Revolution he wouldn’t have been put in the penitentiary or jailed; he would have been executed. And that, as a matter of fact, is the penalty which should be imposed on Count 1 [seditious conspiracy] in this case.” U.S. v. Carlos Torres, Transcript of Sentencing Hearing, February 18, 1981, p. 20.

6. United States v. Oscar Lopez et al., No. 86 CR 513 (N.D. Ill.)

7. In 1960, the United Nations General Assembly called for “a speedy and unconditional end [to] colonialism in all its forms and manifestations.” Resolution 1514 (XV). By 1970, that same body declared that “further continuation of colonialism in all its forms and manifestations is a crime which constitutes a violation of the Charter of the United Nations, the Declaration on the Granting of Independence to Colonial Countries and Peoples and the principles of international law.” Resolution 2621 (XXV). The latter resolution recognized the right of colonial peoples to do precisely what the thirteen colonies which would later comprise the United States had done: “to struggle by all necessary means at their disposal against colonial powers which suppress their aspiration for freedom and independence.” The same United Nations, through its Decolonization Committee, established to monitor the implementation of its resolutions mandating an end to colonialism, has repeatedly declared that Resolution 1514 (XV) applies to the case of Puerto Rico.

8. See, e.g., Verdict of the Permanent Peoples’ Tribunal, Session on Puerto Rico (Barcelona, 1989); Verdict of the Special International Tribunal on the Violation of Human Rights of Political Prisoners and Prisoners of War in United States Prisons and Jails (New York, 1990); Verdict of the International Tribunal of Indigenous Peoples and Oppressed Nations in the U.S.A. (San Francisco, 1992).

9. Administrative Office of the United States District Court, Sentences Imposed Chart For Year Ended June 30, 1981 (Washington, D.C.) , p. 145. See also, Alice Vachss, “Megan’s Law Won’t Reduce Sex Crimes”, New York Times, July 31, 1995, p. A9 (“According to the most recent Bureau of Justice report, the national average sentence for convicted violent felons was less than eight years, of which they served less than four in prison.”).

10. The average sentence for escape during the decade of 1980 to 1990 was 20.9 months (1 year 8 months). Administrative Offices of the United States Courts.

11. Federal Criminal Case Processing, 1980-89 With Preliminary Data for 1990: A Federal Justice Statistics Report (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, October 1991), p. 18 (between 1985 and 1990, for violent offenses, the average time served until first release ranged from a low of 48.8 months (4.0 years) to a high of 54.2 months (4.5 years); Sourcebook of Criminal Justice Statistics 1993, Table 6.92.

12. Kathleen Maguire and Ann L. Pastore, eds., Sourcebook of Criminal Justice Statistics 1997 (U.S. Department of Justice, Bureau of Justice Statistics: Washington, D.C. 1998) Table 5.57, p. 431. See also, Sourcebook of Criminal Justice Statistics 1993, p. 652, Table 6.92 (average time served in federal prison for murder 5.4 years); National Corrections Reporting Program, 1992, p. 34 (average time served in state prison 8 years); Michael Pollan, “How Pot Has Grown”, New York Times Magazine, February 19, 1995, p. 32. (“An American convicted of murder can expect to spend, on average, less than nine years behind bars.”)

13. José “Che” Paralitici, Sentencia Impuesta: 100 Años de Encarcelamientos por la Independencia de Puerto Rico (Ediciones Puerto, San Juan, Puerto Rico, 2004).

14. Oscar López Rivera, Statement to the American Studies Association conference October 29, 2012, http://dogmaandgeopolitics.wordpress.com/2012/11/24/oscar-lopez-rivera-statement-to-the-american-studies-association-in-puerto-rico/.

15. Id.

16. Amnesty International, Allegations of Ill-Treatment in Marion Prison, Illinois, USA, May 1987, p. 15 (“[w]ithin Marion, violations of the [United Nations] Standard Minimum Rules [for the Treatment of Prisoners] are common… There is hardly a rule in the Standard Minimum Rules that is not infringed in some way or other.”); L.C. Dorsey, the National Interreligious Task Force on Criminal Justice, Marion Prison: Progressive Correction or Legalized Torture? (New York), p. 6 (“The absence of balance in the procedures at Marion prison, where security measures override the individual need for human contact, spiritual fulfillment, and fellowship, becomes an excuse for the constant show of sheer force. The conditions of Marion prison…constitute, in our estimation, psychological pain and agony tantamount to torture.”); Human Rights Watch, Prison Conditions in the United States (New York: 1991), pp. 3, 75-77 (noting the proliferation of state maximum security prisons modeled after Marion, condemning as dangerous the trend toward “Marionization” of prison in the United States).

17. “Solitary confinement should be banned in most cases, UN expert says,” United Nations News Centre, October 18, 2011, http://www.un.org/apps/news/story.asp?NewsID=40097#.ULw10ORfDN8.

18. Francis Welch, “The ‘broadcast ban’ on Sinn Fein,” BBC, April 5, 2005, http://news.bbc.co.uk/2/hi/uk_news/politics/4409447.stm; Glenn Frankel, “Britain’s Media Ban on Terrorist Groups Remains Controversial: Censorship: Voices of revered statesmen are silenced in history program broadcast to schoolchildren in Northern Ireland,” Los Angeles Times, November 18, 1990, http://articles.latimes.com/1990-11-1/news/mn6586_1_northern-ireland. See also, Ed Moloney, “Media Censorship During ‘the Troubles’: A leading Irish journalist ponders the consequences, Nieman Reports, of the Nieman Foundation for Journalism at Harvard, Summer 2000, http://www.nieman.harvard.edu/reports/article/101953/Media-Censorship-During-the-Troubles.aspx.

19. “Piden liberar a preso político Oscar López Rivera,” December 1, 2012, http://aquiestapr.blogspot.com/2012/12/piden-liberar-preso-politico-oscar.html; “Políticos de NY abogan por la libertad de Oscar López Rivera,” El Diario/La Prensa, December 1, 2012, http://www.eldiariony.com/Politicos-visitaran-a-preso-nacionalista-puertorriqueno.

20. José A. Delgado, “‘No se justifica mantener en prisión a Oscar López’, dice Pierluisi Piensa que los boricuas demócratas del Congreso pueden hacer un nuevo reclamo a la Junta de Libertad Bajo Palabra, El Nuevo Día, January 6, 2011, http://www.elnuevodia.com/nosejustificamantenerenprisionaoscarlopezdicepierluisi-858086.html

21. Oscar López Rivera, Statement to the American Studies Association conference October 29, 2012, http://dogmaandgeopolitics.wordpress.com/2012/11/24/oscar-lopez-rivera-statement-to-the-american-studies-association-in-puerto-rico/.

22. Dafna Linzer and Jennifer LaFleur, “Presidential Pardons Heavily Favor Whites,” ProPublica, December 3, 2011, http://www.propublica.org/article/shades-of-mercy-presidential-forgiveness-heavily-favors-whites; Dafna Linzer, “Contrasting Colors, Contrasting Results,” ProPublica, December 3, 2011, http://www.propublica.org/special/contrasting-colors-contrasting-results.

23. See, e.g., Associated Press, “Azerbaijan pardons prisoners jailed after protests,” Fox News, June 22, 2012, http://www.foxnews.com/world/2012/06/22/azerbaijan-pardons-prisoners-jailed-after-protests/ (“U.S. Secretary of State Hillary Rodham Clinton called for jailed opposition figures to be released while visiting the former Soviet nation earlier this month.”); “Washington Welcomes Release of Political Prisoners in Belarus,” Rianovosti, April 17, 2012, http://en.ria.ru/world/20120417/172864234.html (U.S. State Department spokesperson Mark Toner said, “This, coupled with previous releases, represents a significant step. “We urge the Government of Belarus to immediately and unconditionally free all remaining political prisoners and ensure the full restoration of their civil and political rights.”); Juan Carlos Chavez, “US calls for immediate release of government opponents in Cuba, Miami Herald, April 4, 2012, http://www.miamiherald.com/2012/04/04/2732066/us-calls-for-immediate-release.html; Mark C. Toner, “Message on the Twenty-Third Anniversary of Tiananmen Square,” June 3, 2012, http://www.state.gov/r/pa/prs/ps/2012/06/191692.htm (Toner is Deputy Spokesperson, Office of the Spokesperson, of the U.S. State Department); Associated Press, “US Ambassador Rice demands Egypt’s leaders release 19 Americans facing trial,” Washington Post, February 6, 2012, http://www.washingtonpost.com/national/national-security/us-ambassador-rice-demands-egypts-leaders-release-19-americans-facing-trial/2012/02/06/gIQAToNhtQ_story.html.

Civil Liberties, the Rule of Law and Political Repression in the Age of Obama

CIVIL LIBERTIES, THE RULE OF LAW AND POLITICAL REPRESSION IN THE AGE OF OBAMA

Text from presentation by Michael Deutsch of People’s Law Office
Presented at the Derechos Humanos Conference in San Juan, Puerto Rico
December 8, 2012

In talking about the state of civil liberties, the rule of law and political repression today, I want to start by going back almost 35 years to a secret closed conference, entitled, “Special Seminar on Terrorism” that was held here in Puerto Rico in 1978. The conference was funded by the U.S. Justice Department, and attended by the FBI and leading so-called experts on counter-insurgency throughout the world, including military officers and advisers involved in suppressing liberation movements in Ireland, Asia and Latin America.

Although the conference was highly secret, shortly after its conclusion, I anonymously received, , the planning documents for the conference. At the time I was deeply involved with the legal representation of Puerto Rican independence activists in the United States who were under intensive surveillance by the FBI, whose community leaders were subpoenaed to federal grand juries in Chicago and New York, and were imprisoned for not collaborating with the U.S. governments investigations into clandestine independence activities – and subsequently, captured accused members of the FALN, charged with “seditious conspiracy,” used for the first time since the Puerto Rican Nationalists were charged in the 1950’s.

So the planning documents of this secret conference on “terrorism,” which focused on methods, and strategies for dealing with what was considered by the conference planners as a growing and potentially broad insurgency in furtherance of Puerto Rican independence, was of great interest to me.

The overarching thesis reflected in the conference planning documents was that that the U.S. intelligence and law enforcement agencies must develop a “counter-insurgency” approach to dealing with the independence movement. Counter-insurgency was defined (and still is defined by the U.S. military) as:

Those military, para-military, political, economic , psychological and civic actions taken by a government to defeat subversive insurgency,” [and ] Insurgency was defined as “[a] condition resulting from revolt or insurrection against a constituted government that falls short of civil war.

The planning documents quoted extensively from the writings of two British military officers and leading counter-insurgency theorists, who had commanded British occupation forces in Northern Ireland, Frank Kitson, the author of “Low-Intensity Warfare” and Lt. Col. Robin Evelegh, the author of “Peace Keeping in a Democratic Society.”

Both Kitson and Evelegh’s theories and strategy are based on the principle that the resistance of oppressed sectors of a population is inevitable and continuing, and therefore the strategy for the security forces, rather than reacting to individual acts or periods of heightened resistance, must be one of permanent repression directed at broad sectors of the community from which the resistance will emerge.

Even in periods of calm and inactivity, the theory of counter-insurgency posited by Kitson and Evelegh, as well as others, argue that it is critical that the security forces actively identify potential leaders and supporters of resistance. The CI strategy calls for the gathering of information, surveillance, building dossiers and infiltrating political and community organizations.

Evelegh writes that “population surveillance is essential, including the right to question, photograph, fingerprint all members of a population potentially affected by an insurgency and to use all technology available to facilitate the surveillance and information gathering on these targeted communities.” Of course, you here are well aware of the Puerto Rican police dossier keeping – - “carpetas” – on thousands of independististas, a program carried out with the full knowledge and support of the FBI.

The other predominate feature of the secret conference planning documents was the advocacy of the use of the law and the legal system to attack and destroy potential insurgent movements while at the same time maintaining the appearance of the law as impartial and non-political.

Kitson writes that, “[t]he law should be used as just another weapon in the government’s arsenal. . . For this to happen efficiently the activities of the legal system has to be tied into the war effort in as discrete way as possible.”

Invoking this analysis, the planning documents called for, at the earliest possible point, “the enactment of substantive laws making new offenses, [and] revision and expansion of the existing laws related to arrest, search, detention and intelligence gathering.”

The documents specifically called for “increased police power of intelligence gathering, harsh bail policies including internment for “extremist leaders,” special attention to venue, postponement of trials, courtroom security and the expansion of the government’s powers of search and seizure. The documents also mention the use of highly restrictive pre-trial detention, including solitary confinement, as well as invading attorney-client meetings with police observers and the opening of legal mail.”

In addition, the planning materials also state the importance of control of the media to discredit independence activists, referred to repeatedly in the documents as terrorists.

“The media should never be permitted to demonstrate the terrorist as an ordinary human. Briefing and orientation may be necessary in order to focus terrorist coverage by the media.”

Indeed, many of the ideas and counter-insurgence strategies discussed in the planning materials were in some form being implemented by the FBI and U.S. Justice Department against the P.R independence movement, including the accused Macheteros, whose homes and work places were simultaneously raided under an FBI operation called “D Day,” in August, 1985, during which thousands of books and political documents were seized, and where, over a period of months prior to the raids, thousands of hours of private and personal conversations were illegally electronically overheard. Those arrested in the raids were transported by U.S. military aircraft to Hartford Ct. to stand trial for the Wells Fargo Depot robbery, where most spent years in prison before finally allowed bail.

The use of the grand jury to “intern” public independence supporters, including the prosecution for criminal contempt, the expanded use of electronic surveillance including the placement of cameras in residences, prolonged pre-trial detention, trials with expanded court-room security, and the refusal of the courts to allow evidence of the colonial situation of Puerto Rico from being raised in the courtroom, all were implemented following the counter-insurgency model.

Fast Forward to Today

I suggest to you that today, as a result of the global war on terror (GWOT), begun by Clinton, but really implemented, with great bravado and fanfare, by Bush after 9/11, and continued and expanded under Obama – yes, continued and expanded under former constitutional law lecturer Barack Obama – we have now in place – institutionalized in our legal system – all the elements of a domestic “counter-insurgency” strategy with bi-partisan Congressional support. The Democrats have joined with the Obama Administration to institute and approve policies, laws and secret practices that they were up in arms about when Bush was in charge.

Spying, Surveillance and Secrecy

The Surveillance State has been secretly and greatly expanded under the Obama administration which has now erected an impenetrable wall of secrecy around open-ended massive warrant-less electronic surveillance, the wholesale collecting of e mails and the tracking of cell-phones. NSA whistleblower, William Binney asserts that the NSA is collecting all the e-mails of Americans, through the NARUS traffic analyzer technology – 15-20 trillion emails under the “Terrorist Surveillance Program” has been seized without any judicial oversight and are housed in data bases for retrieval at any time.

Under the OA, the U.S. Patriot Act, has been renewed with little debate, which has been interpreted to allow, among other things, for secret spying on U.S. citizens without a judicial warrant, the use National Security letters which empowers the Feds to obtain all of one’s phone, financial and credit records, without even a claim of wrongdoing. Between, 2003-5 over 150,000, National security letters were issue by U.S. prosecutors. In addition under the Patriot Act the government is empowered to carry-out secret warrantless searches, called “sneak and peek.”

The U.S. has over 16 agencies involved in intelligence gathering, with major programs at the FBI, Dept. of Defense, the NSA and the Department of Homeland Security. Each of these agencies are working with private companies – including the tele-com companies who have been given immunity for cooperating with the Government –involved in data mining personal and private information including emails, phone calls and other communications and illegally sharing it with law enforcement.

In a classic catch 22, the Obama Administration has opposed any court challenge to these secret programs, arguing that unless a person can show their conversations were actually overheard or their emails seized they have no standing to challenge these secret program.

The U.S. in building a I million square foot center at the cost of 2 billion dollars in Bluffdale, Utah to store and retrieve all of the data that has been obtained by the surveillance state.

Beyond this, hundreds of thousands of documents are unnecessarily classified as secret and undiscoverable through the FOIA or court litigation. In 2011 alone, 92 million documents were classified as secret, double the amount classified in 2009. Even documents provided by the government of Israel, detailing their programs and methods for interrogating Palestinians, have been claimed as “classified” by the U.S. government, and kept hidden from defense counsel in a case in which a Palestinian man was tortured for 85 days by the Israeli secret police.

The U.S. now routinely acts in conjunction with local law enforcement in carrying out massive spying operations against millions of Americans, including the infiltration of Mosques and the use hundreds of paid informers to spy upon and set-up, mostly young Muslim men.

I would say that the teachings of Kitson and Everleigh to surveill, monitor and keep dossiers on people and communities from which potential insurgency might arise, even in periods of utter calm, has been implemented and totally accomplished by the U.S. government

Detention without Trial and Military Commissions

We have also legalized indefinite military detention without trial under the National Defense Authorization Act (NDAA), for anyone “who it is claimed to have “substantially supported Al-Queada, the Taliban or “associated forces” that engaged in hostilities against the U. S. or coalition forces.”

In a recent law suit challenging the law, the Government refused to say that the law would not be used against reporters and others who met with and report on the activities of such groups. When the District Court enjoined the law as clearly overbroad in violation of the First Amendment, the Obama administration filed an emergency appeal and got a higher court to reinstate the law.

We are continuing to house men at Guantanamo, many who have never been charged, going on 10 years. For the few who have been charged we are continuing to use “military commissions,” instead of federal courts. These commissions presided over by military officers, prohibit the defendants from raising claims of torture, have military personnel as jurors, bar the use and access to classified evidence, and as a practical matter are not public trials. So the counter-insurgency ideas of preventive detention and special trial venues have been instituted.

Torture

The Obama administration has created an “impenetrable circle of impunity” to torturers, their supervisors and their legal enablers, refusing to investigate valid claims of torture, ignoring its obligations under international treaties and covenants against torture.

Not only has it failed to prosecute torturers, it has charged a former CIA agent with “espionage,” with a potential life sentence, for disclosing to the press the name of one of the CIA torturers. Another government “whistleblower” has also been charged with espionage for leaking information about the illegal warrant-less electronic surveillance program to the New York Times.

In fact, these 2 men, and 4 other whistleblowers, have been charged with espionage for leaking information to the media of government wrongdoing. More people have been charged under this espionage law under Obama that all the prior presidents combined. And many of you might also know the case of soldier Bradley Manning who is accused of providing documents to Wiki-leaks about the government’s lies and cover-ups about the wars in Iraq and Afghanistan. He faces life in prison and has been held in solitary confinement under cruel and degrading conditions, equivalent to torture.

Obama has not only refused to prosecute torturers, but also freely used a doctrine called the “States Secret Privilege” to prevent private civil lawsuits alleging torture, illegal electronic surveillance and rendition, claiming the programs and policies are classified and secret, thus cannot be the subject of court review. Once this doctrine is raised in court, the courts invariably dismiss the case, no matter how serious the claims, or how much of the so-called classified information is already public.

Even the challenge to the Obama assassination drone program secretly implemented with a “kill list” which has murdered hundreds of civilians, and which doesn’t even always target specific persons, but executes so-called “signature targets” – people that fit a general profile – has been subjected to claims under the States Secrecy Doctrine. At the same time the Obama administration refuses to answer in court for their Drone program as secret and classified, the Attorney General of the United States proclaims in a U.S. law school that “due process” is satisfied by an internal process of the Executive Branch that decides who shall be eliminated without any review by the Courts.

Although the CIA was forced close its secret prisons in the last years of the Bush administration, the Obama administrations still uses foreign countries and the policy of “extraordinary rendition” to house and torture arrested militants, who aren’t eliminated by drones. It has been recently documented that Somalia and Afghanistan house and torture militants on behalf of the United States, who are denied access to habeas corpus relief in the U.S. courts.

Material Support and Other Special Laws

We have passed new legislation which now criminalizes pure First Amendment activities if it provides “material support” for an expansive list of over 48 offenses that might be committed by terrorists, and for designated Foreign Terrorist Organizations (FTOs).

In addition, the Government has also been given the power to designate through the Treasury Department under the International Emergency Economic Powers Act (IEEPA), organizations and individuals, without a hearing or a finding of probable cause, to be a Special Government Designated Terrorist (SDGT), and as a result the person or organizations funds are blocked and the designee cannot carry out any economic activities, without a special license.

The case of my client Muhammad Salah is a frightening example of this awesome power. 17 years on the list, despite acquittal of all terrorism related charges by a federal jury and only recently was delisted after the filing of a federal law suit. After 9/11, 15 of the largest Muslim charities were shut down and all their assets blocked, without any showing that their charitable work was in support of terrorism.

In addition, the material support law has been used to criminalize leaders of charities, as well as other First Amendment conduct, empowering the Secretary of State, with little meaningful right to be heard, to place foreign political organizations on a terrorist list. Of course, many of the groups so designated are listed because they oppose U.S. policies towards their country.

Once a group is listed, any knowing “support,” which could be totally unrelated to the use of force or violence, is made criminal under the broad and vague terms of providing “expert advice or assistance”, “training” (designed to impart a specific skill), or “services.” Advising a listed group how to pursue human rights claims, initiate peace discussions, or providing a group with legal advice, or providing charity to social service agencies, allegedly affiliated with such a designated group or a sub group, can result in a s 15 year prison sentence.

Tens of young Muslim men have been targeted by the FBI, for travel to Middle East or for writings on the internet, or entrapped into plans that could never have reached fruition, have been imprisoned on material support charges.

The leaders of the Holy Land Fund, the largest Palestinian charity in the world are serving long prison sentences up to 65 years for raising money to provide help for the people living under occupation.

After a lower court held that the terms expert “assistance and advice”, “training or service” were unconstitutionally vague, would allow for the punishment of pure speech, and could not be the basis for a material support charge, the Obama Administration appealed this ruling favorable to the Constitution. In 2010 the reactionary U.S. Supreme Court, in Holder v. The Humanitarian Law Project , held that any act whether or not pure speech, or advocacy protected by the First Amendment could be the basis for a material support violation, if the act was “in conjunction with or under the direction of a designated Foreign Terrorist Organization.”

Within months of this ruling, the homes of anti-war and international solidarity activists, supporting the freedom of Palestinian were raided by the FBI, all their books and papers confiscated, and they and 20 others were subpoenaed to a grand jury investigating “material support “for the Popular Front for the Liberation of Palestine, one of the four main Palestinian liberation organizations designated by the U.S. as an FTO. These political activists’ crime was sponsoring a speaking tour of a Palestinian woman, writing articles in support of the rights of the Palestinian people and public education about the treatment of Palestinian prisoners.

Of course, those who are convicted are sent to special prisoners, where they are held in isolation, and denied contact visits with family. In many cases their lawyers have to agree to special limitations on their rights to confer or be prohibited from visiting. There is one Unit in Terre Haute Indiana, where almost all the prisoners housed there are Muslims, yet they are prohibited from gathering together to pray.

Through this list of “horribles,” the mainstream media has stayed silent. National Public Radio has a terrorism correspondent which simply parrots the FBI and stay silent about all of these unconstitutional abuses. The Democrats have also said nothing, since it’s their standard bearer who has expanded and developed these counter-insurgency methods. Can you imagine if President McCain had done what Obama has done?

We have institutionalized changes in our most basic constitutional rights – a bi partisan wave of repression that violates international law, ignores our most fundamental protections and is now a permanent fabric of the U.S. judicial system. The politics of fear, ignorance and official mendacity has allowed for this transformation of our legal system in a way that would clearly satisfy the counter-insurgency theorist of the 1970’s. We must speak out at every opportunity to explain and denounce what has happened to our basic human rights. To stay silent makes us complicit in these crimes against the people.

Chicago Police, Code of Silence and the Koschman Case

Nanci Koschman after indictment regarding son's deathWe at People’s Law Office recognize, after years of cover up, the importance of the recent announcement that Richard J. “R.J.” Vanecko, nephew of former Mayor and former Cook County State’s Attorney Richard M. Daley has been indicted. It is significant that for years, a politically connected individual was not previously indicted for crimes in the tragic death of a young Chicagoan, David Koschman.  (For more information on the announcement, read the recent editorial by Mary Mitchell in the Chicago Sun-Times).  The indictment speaks to crucial issues of fundamental fairness and the imperative that no one, no matter how rich or politically connected, should be above the law. The arduous journey to reach this decision also required exposing and overcoming the conspiracy of silence to maintain business as usual by law enforcement and government officials.

The police code of silence was recently “indicted” by a jury in a federal civil rights case who found that such a code within the Chicago Police Department resulted in the brutal beating of a young woman by an off duty drunken police officer. (Read an article on the code of silence by Flint Taylor of People’s Law Office).  Many are now outraged at the City’s attempts to silence the importance of that verdict by attempting to vacate that verdict’s resounding and momentous indictment of the Chicago police code of silence.

These events however, do not call for comfort or complacency. The criminal legal system is fundamentally flawed. The current realities of mass incarceration and the prison industrial complex are abysmal and oppressive to communities of color.  For more information on the injustices resulting from the criminal legal system in the United States, read “Queer (In)Justice,” co-authored by Joey Mogul of People’s Law Office, “Arrested Justice,” by Beth Richie and “The New Jim Crow,” by Michelle Alexander.

The code of silence is alive and well in the Chicago Police Department, despite the City’s disingenuous claims to the contrary. City officials claim the code of silence is a thing of the past because the Independent Police Review Authority (IPRA) has replaced the Office of Professional Standards (OPS). IPRA should be invited to detail how its investigations account for or discourage the code of silence. IPRA should be challenged to explain why its sustained rates are lower than OPS.  (For more information about IPRA and its investigations into police misconduct, read our Analysis of IPRA’s Quarterly Report)

Anti-War Class Action Lawsuit Gets Final Approval

Vodak Class Action Lawsuit

Great News!

Yesterday, November 7, 2012, the Judge presiding over the Vodak class action civil rights lawsuit granted the motion for final approval of the class action settlement and approved an award for our attorneys’ fees and costs. You can find the motion for final approval of the class claims here.

What’s Next?

On January 7, 2013, the City of Chicago is obligated to provide the Claims Administrator with the money to fund the class members’ settlement awards.

Class members should receive their settlement checks in the mail from the Claims Administrator within 30 days thereafter. (Note, if your address has changed since you submitted your claims forms, you need to contact the Claims Administrator to ensure you get your settlement award).

Class members must deposit or otherwise cash their settlement checks before April 6, 2013 or the money will go back to the City of Chicago.

If you do not get your check by February 7, 2013, please contact the Claims Administrator at www.chicagoantiwarprotestsettlement.com or at:

Vodak v. City of Chicago Claims Administrator
c/o Class Action Administration, Inc.
PO Box 6848
Broomfield, CO 80021
Telephone (toll-free): 1(877)926-4750

Puerto Ricans Reject Limitations on Bail

Puerto Rican Independence Decolonization Committee of United NationsPuerto Ricans Reject Constitutional Amendment to Limit Right to Bail
By Alberto Rodriguez, Paralegal, People’s Law Office

Over 800,000 voters in Puerto Rico voted on August 19, 2012 on a referendum to amend the island’s constitution to give judges the right to deny bail to defendants in certain criminal cases and to reduce the size of the legislature. The pro-statehood ruling New Progressive Party waged a well-financed campaign that saturated television and radio with ads that were blatantly misleading and shamelessly appealing to people’s concerns and fears of the rising tide of crime in Puerto Rico. A clear majority of 54% resoundingly rejected these fear mongering appeals to emotions and outright lies. This was a great victory for civil liberties in Puerto Rico as well as a blow against political campaigns fueled by money and the electoral machinations of the New Progressive Party and their colonial partners the pro-commonwealth Popular Democratic Party.

The campaign against the referendum was impressive. Political Parties like the Puerto Rican Independence Party (PIP), Party` of the Working People (PPT), Sovereignty Movement Union (MUS) and the Puerto Ricans for Puerto Rico Party all worked tirelessly to defeat the referendum. Even more impressive were the coming together of a grass roots Committee called Comité de Pueblo en Defensa de la Fianza (People’s Committee To Defend the Right to Bond). This group led by the Colegio De Abogados (Bar Association) was able to bring together the various efforts of major political and opinion leaders, as well as sections of students, workers, unions, communities, churches and religious, political organizations, professionals, lawyers, civil and human rights, among others against the referendum. They did an effective job of educating and mobilizing as well as recruiting volunteers to defend the NO votes at polling stations across the island.

I was in Puerto Rico during the month of July. I saw huge professionally designed billboards on the side of all the major roadways in support of the amendments. In one a photo of two handcuffed youths, defiantly giving the “finger” while menacingly glaring at the camera. The motto of the PNP was “If you don’t vote, they win.” One could not watch more than 10 minutes of TV or listen to more than a few songs over the radio and not be exposed to ads in support of the referendum. Mother’s of murdered sons were shamelessly used in ads in support of the amendment. In comparison the media campaign by those that rejected the amendment were much more modest. I saw mostly small posters plastered on underpasses or nailed to trees. Occasionally banners were hung from bridges. Ads on TV were virtually non existent nevertheless the opposition found creative ways to get their message out utilizing radio, the internet, emails, Facebook, and twitter. Also caravans were organized going out throughout the island educating and mobilizing people against the referendum.

As is common in Puerto Rico, discussions about the amendment were everywhere. One could not enter a restaurant, grocery store, gas station and especially a bar without hearing people talking about the referendum. I spent almost all my time in a semi-rural impoverished area in North Central Puerto Rico. There was universal rejection of the amendment. Many saw it as just another attack against poor people. There is a general distrust of the criminal justice system particularly the police who are known for their sloppy investigations and tampering with evidence. No one believed that money saved from a reduction in the number of legislators would be put to good use. Many felt that it would just be more money for corrupt politicians and administrators to appropriate for patronage, pet projects or outright theft. Several well publicized cases of wrongful arrests of innocent men that endured months of incarceration for serious crimes and later dropped by the state added to people’s apprehension to giving the state more power.

The defeat of the referendum is having a profound impact on the island’s immediate political future. The political elite of the island totally mis-read the people’s sentiment. Days before the referendum “El Nuevo Dia”, island’s largest newspaper, published a poll indicating that a majority were exhausted by the island’s high crime rate and with a constantly bickering legislature were leaning towards overwhelmingly voting for both measures. They were wrong.

The defeated referendum also created strange bed fellows with the 2 major parties defined by their support for pursuing U.S. statehood or remaining a U.S. commonwealth (colony). Governor Luis Fortuño, a pro-statehood Republican and president of the New Progressive Party and his principal opponent in November’s gubernatorial election, Senator Alejandro Garcia Padilla, a pro-commonwealth Democrat and president of the Popular Democratic Party supported the amendments.

In addition Ex-Police Superintendent Pedro Toledo, stated that denying bail would increase the prosecution rate for murders, which is currently a dismal 30%. According to him potential witnesses fear being killed by suspects who are out on bail and therefore do not cooperate with the police. “Having the accused remain in jail will take away the pressure on a witness and their family,” Toledo told a news conference with other judges who supported the amendment.

Already there are pundits and political leaders who are trying to downplay the impact of the NO vote. They are attempting to frame rejection of the referendum as a case of a last minute change of sentiment by the electorate. This is an attempt to deny the effectiveness of the NO Campaign and a mass rejection of the leadership of both major parties. Just as over a decade ago Puerto Ricans came together in a successful campaign to free the political prisoner and get the U.S. Navy out of Vieques the people have once again demonstrated their ability to fight against attempts to take rights away from them and for peace, justice and freedom.

Grand Jury Resistance Post 9/11

Grand Jury Resistance Post 9/11

By Michael Deutsch, People’s Law Office
Originally published on boricuahumanrights.org

In the past, the likely scenario for a grand jury resister was a citation for civil contempt which could be a long as the remaining life of the grand jury – up to18 months – and the possibility of early release through a “Grumbles” motion, which alleges that further incarceration would not force the contemnor to cooperate. It was also possible to re-subpoenaed to a second grand jury after the life of the first one has expired. In a few cases, the MLN 5 being one of them, the government obtained an indictment for criminal contempt after the civil contempt was unsuccessful. Criminal contempt does not have a maximum sentence. Theoretically one can be sentenced up to life for criminal contempt. In the MLN 5 case the government asked for 15 years and the judge sentenced the 5 to three years each. This sentence occurred before the sentencing guidelines was enacted, allowing the district judge to have broad discretion is fashioning a sentence.

Post 9/11, with the Justice Department in full propaganda mode in its fight against terrorism, the stakes for the grand jury resister has increased. While I have not seen an analysis of post 9/11 use of criminal contempt, in one recent case a Palestinian activist, Abdelhaleen Ashqar, was charged with criminal contempt and the obstruction of the due administration of justice for two refusals to testify, one in New York and one in Chicago. After Ashqar, following a long hunger strike, was released from civil contempt in 1998 in New York under the Grumbles theory that he could not be coerced, he was re-subpoenaed four years later to a grand jury in Chicago. convened post 9/11 and investigating the same issue of Palestinian support for Hamas.

The government knew full well based on his position in New York he would not testify. After he refused in Chicago he was imprisoned for civil contempt and after several months he was indicted for criminal contempt and then subsequently charged with criminal contempt and obstruction of justice for his refusals in New York and Chicago, and a RICO conspiracy.

He was acquitted of the RICO charge, but convicted of both criminal contempt and obstruction. Despite a clearly sympathetic jury, there is really no defense to a criminal contempt charge other than jury nullification. Ashqar now faced a maximum of 10 years on the obstruction charge and up to life (no max sentence) for criminal contempt. Both the probation department and the prosecutors argued that Ashqar’s sentence should be increased by a “terrorism enhancement”, which specifically allows a grand jury resister to be charged with having obstructed a terrorism investigation by refusing to testify before a grand jury that is alleged in investigating terrorism and terrorist groups. Despite the fact that Ashqar was acquitted of the Rico conspiracy based on allegations of support for and membership in the “terrorist” Hamas, the court readily applied the “terrorist enhancement,” sky-rocketing his potential sentence up to 30 years. The court did reject the government’s argument that he could also be sentenced based on a claim that his refusal to testify was the equivalent of aiding and abetting terrorism. However the terrorism enhancement allowed for the same type of draconian sentence.

A non-violent act of politically motivated civil disobedience could now be considered an act of aiding terrorism and/or obstructing an investigation into terrorism. Ashqar received a sentence of 135 months, an unprecedented, obscene sentence. I might add that the judge was generally not as reactionary as many others, and a higher sentence could have been easily imposed by a different judge. I would also add that after his sentence, the Supreme Court affirmed that judges are not necessarily bound by the sentencing guidelines, and, while they can be used as a measure, the judges have discretion to fashion a fair sentence. However, I believe that despite this ruling by the Supreme Court, most judges will look quite harshly on refusals to testify before grand juries looking into terrorism.

One other point. While I know of no case at this point, there have been insinuations that lawyers and others who try to influence those subpoenaed to not testify could be prosecuted for obstruction or even conspiracy to obstruct. While people have First Amendment rights to speak out and organize, the government would likely argue that no one has the right to counsel and organize people to violate the law.

US Justice Department Prepares for Ominous Expansion of “Material Support” Law

US Justice Department Prepares for Ominous Expansion of “Material Support” for Terrorism Law

by Michael Deutsch, People’s Law Office

In late September the FBI carried out a series of raids of homes and anti-war offices of public activists in Minneapolis and Chicago. Following the raids the Obama Justice Department subpoenaed 14 activists to a grand jury in Chicago and also subpoenaed the files of several anti-war and community organizations. In carrying out these repressive actions, the Justice department was taking its lead from the Supreme Court’s 6-3 opinion last June in Holder v. the Humanitarian Law Project which decided that non-violent First Amendment speech and advocacy “coordinated with” or “under the direction of” a foreign group listed by the Secretary of State as “terrorist” was a crime,.

The search warrants and grand jury subpoenas make it quite clear that the federal prosecutors are intent on accusing public non-violent political organizers, many affiliated with Freedom Road Socialist Organization (FRSO), of providing “material support,” through their public advocacy, for the Popular Front for the Liberation of Palestine (PFLP) and the Revolutionary Armed Forces of Colombia (FARC). The Secretary of State has determined that both the PLFP and the FARC “threaten US national security, foreign policy or economic interests,” a finding not reviewable by the Courts, and listed both groups as foreign terrorist organizations (FTO).

In 1996, Congress made it a crime then punishable by 10 years, later increased to 15 years, to anyone in the U.S. who provides “material support or resources to a foreign terrorist organization or attempts or conspires to do so.” The present statute defines “material support or resources” as:

Any property, tangible or intangible, or service, including currency or monetary instruments or financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel and transportation except medicine or religious materials.

In the Humanitarian Law Project, human rights workers wanted to teach members of the Kurdistan PKK, which seeks an independent Kurdish state, and the Liberation Tigers of Tamil Eelam (LTTE), which sought an independent state in Sri Lanka, how to use humanitarian and international law to peacefully resolve disputes, and to obtain relief from the United Nations and other international bodies for human rights abuses by the governments of Turkey and Sri Lanka. Both organizations were designated as FTOs by the Secretary of State in a closed hearing, in which the evidence is heard secretly.

Despite the non-violent, peacemaking goal of this speech and training, the majority of the Supreme Court nonetheless interpreted the law to make such conduct a crime. Finding a whole new exception to the First Amendment, the Court decided that any support, even if it involves non-violent efforts towards peace, is illegal under the law since it “frees up other resources within the organization that may be put to violent ends,” and also helps lend “legitimacy” to foreign terrorist groups. Writing for the majority, Chief Justice Roberts, despite the lack of any evidence, further opined that the FTO could use the human rights law to “intimidate, harass or destruct” its adversaries, and that even peace talks themselves could be used as a cover to re-arm for further attacks. Thus, the Court’s opinion criminalizes efforts by independent groups to work for peace if they in anyway cooperate or coordinate with designated FTOs.

The Court distinguishes what it refers to “independent advocacy” which it finds is not prohibited by the statute, from “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization,” which is for the first time found to be a crime under the statute. The exact line as to where independent advocacy becomes impermissible coordination is left open and vague.

Seizing on this overbroad interpretation of “material support,” the U.S. government is now moving against political groups and activists who are clearly exercising fundamental First Amendment rights in vocally opposing the government’s branding of foreign liberation movements as terrorist and support their struggles against U.S. backed repressive regimes and illegal occupations.

Under this new definition of “material support,” the recent efforts of President Jimmy Carter to monitor the elections in Lebanon, coordinating with the political parties there including a designated FTO, Hezbollah, could well be prosecuted as a crime. Similarly, the publication of op-ed articles by FTO spokesmen from Hamas or other designated groups by the New York Times or Washington Post, or the filing by human rights attorneys of amicus briefs arguing against a group’s terrorist designation or the statute itself could also now be prosecuted. Of course, the first targets of this draconian expansion of the material support law will not be a former president or the establishment media, but members of a Marxist organization and vocal opponents of the governments of Israel and Colombia and the U.S. policies supporting those repressive governments.

President Obama in his foreword to the recent autobiography of Nelson Mandela, Conversations with Myself, wrote that “Mandela’s sacrifice was so great that it called upon people everywhere to do what they could on behalf of human progress. [and] . . . [t]he the first time I became politically active was during my college years, when I joined a campaign on behalf of divestment, and the effort to end apartheid in South Africa.” At the time of Mr. Obama’s First Amendment advocacy, Mr. Mandela and his organization the African National Congress (ANC) were denounced as terrorist by the U.S. government. The “material support” law, if in effect back then, would have opened Mr. Obama up to potential criminal prosecution. It is ironic, and the height of hypocrisy, that this same man who speaks with such reverence for Mr. Mandela and recalls his own support for the struggle against apartheid, now allows the Justice Department under his command to criminalize similar First Amendment advocacy against Israeli apartheid and other repressive foreign governments.

The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists

The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists

by Michael E. Deutsch*

Copyright (c) 1984 Northwestern School of Law

Journal of Criminal Law & Criminology

Winter, 1984

75 J. Crim. L. & Criminology 1159

* Partner, Peoples Law Office, Attorney for Political Activists, Chicago, Illinois. J.D., Northwestern University, 1969; B.A., University of Illinois, 1966.

Secret inquisitions are dangerous things justly feared by free men everywhere. They are the breeding place for arbitrary misuse of official power. They are often the beginning of tyranny as well as indispensible instruments for its survival. Modern as well as ancient history bears witness that both innocent and guilty have been seized by officers of the state and whisked away for secret interrogation or worse, until the groundwork has been securely laid for their inevitable conviction. While the labels applied to this practice have frequently changed, the central idea . . . remains unchanging — extraction of “statements” by one means or another from an individual by officers of the state while he is held incommunicado. n1

[*1159] I. INTRODUCTION

In the United States, the government imprisons radical political activists, often called terrorists, through the grand jury subpoena power, without a specific criminal charge. n2 This practice deeply offends our basic constitutional principles of due process, presumption of innocence, and trial by jury.

Although the laws of apartheid in South Africa, which allow for indefinite detention of political oponents without specific charge or trial, n3 and the internment laws of Britain, which were used to [*1160] imprison supporters of the Irish Republican movement solely on suspicion of their membership in the Irish Republican Army, n4 would [*1161] clearly be prohibited under the United States Constitution, a similar type of internment without charge is being employed in the United States with little public outcry. n5

The Justice Department and the FBI use the subpoena power of the federal grand jury, coupled with compulsory immunity, to jail radicals who refuse to cooperate with government investigations. n6 The government detains these political activists through a system of judicial procedures and congressional statutes that the Supreme Court has upheld, n7 but that nonetheless allow the executive branch to usurp the subpoena power of the grand jury and create a law enforcement inquisition power that requires full cooperation or indefinite imprisonment — “Political Internment American Style.”

[*1162] The contention that the legendary noble institution of the grand jury, adopted by the European settlers in America from their British cousins as a safeguard to the accused from the improper motivations of government, n8 is being used as an instrument of political repression may well be met with great skepticism or shock. In reality, however, the history of the grand jury in England and in the United States has been predominantly one of serving the interests of the government or the prejudices and passions of the local populace. n9 In the few well publicized cases where individual grand juries have refused to indict political opponents of the government against the wishes of the government authorities, these authorities have simply convened more compliant grand juries or found other ways to accomplish their political ends. n10

This Article will provide a brief historical examination of the origins of the grand jury and its use in the United States, with particular focus on contemporary history. In recent years, the government has used the grand jury as a tool of inquisition, subpoenaing and resubpoenaing activists whom the government knows will refuse to cooperate with grand jury investigations concerning their political movements. n11

Next, the Article will discuss the emergence of organized opposition to the grand jury by the political groups and movements under attack. n12 This opposition includes the principle of non-collaboration — the refusal to cooperate in any manner with grand jury investigations concerning political activity. Activists from the United States and Puerto Rico subpoenaed before grand juries who assert the principle of non-collaboration frequently face internment. n13

Finally, the Article will argue that the fundamental principles of free association and political freedom under the first amendment, coupled with the historic right against self-incrimination codified in the fifth amendment, establish a “political right of silence.” n14 This right should bar the government from compelling cooperation with the grand jury under threat of imprisonment in an investigation involving political beliefs, activities, and associations.

 

[*1163] II. THE GRAND JURY: A HISTORICAL OVERVIEW

A. THE ORIGINS OF THE GRAND JURY

Most scholars agree that the forerunner of the modern grand jury arose first in England during the reign of Henry II, not as a reform in the interests of the people, but as the result of the King’s efforts to control the power and money of the church and barons. n15 Prior to Henry II’s reign, the church and barons had their own courts that allowed them to exercise power over portions of the King’s realm and raise substantial revenues. n16 During Henry II’s reign, a system of judicial administration was consolidated in the hands of the King through two pieces of legislation: the Constitutions of Clarendon of 1164, in which the church hierarchy consented to the use of an “accusing jury” to bring formal charges against any layman charged in the ecclesiastical courts, and the Assize of Clarendon of 1166, which placed the power of appointing the members of the accusing juries in the hands of royal sheriffs or justices. n17

The newly created grand jury was not an instrument for the benefit of the people. In fact, because the method of trial was by ordeal, and an accusation was tantamount to a verdict of guilty, the populace greatly feared the new “accusing jury” which operated as a direct arm of the King’s power. The grand jurors were charged with raising money for the support of the King’s war by confiscating the accused’s land and money. The grand jurors were subject to heavy fines and intimidation for failing to indict a sufficient number of persons. n18

By the 17th century, trial by ordeal was abolished, n19 the petit jury appeared as a body separate from the accusing jury, and an accusation was no longer a guaranteed final determination of guilt. n20 Most commentators argue that in this period the grand jury emerged as the great protector of the individual against the power [*1164] of the king. n21 Legal historians most often cite the prosecutions in 1681 of Anthony, Earl of Shaftesbury, and Stephen Colledge as establishing the grand jury as a protector against oppressive government. n22

Both the Earl of Shaftesbury and Stephen Colledge were vocal Protestant opponents of King Charles II’s attempt to re-establish the Catholic Church in England. n23 Countering an attempt by the Earl of Shaftesbury to have his brother the Duke of York indicted for refusing to recognize the Anglican Church, the King presented charges of treason to a London grand jury against Shaftesbury and his follower Stephen Colledge. The London grand jury, chosen by Protestant sheriffs and packed with Protestant citizens, refused to indict either man and rejected the King’s counsel’s attempt to make the grand jury proceeding public. n24 While supporters of the grand jury often cite the London grand jury’s refusal to indict Shaftesbury and Colledge as an early example of the role of the grand jury as a shield from the abuse of government power, the incident may stand for a far less noble principle.

The London grand jury, comprised of Protestants chosen by Protestant sheriffs, was, of course, unlikely to indict two Protestant men widely known to be supporters of the Anglican Church. The King recognized his error and simply took the Colledge case to Oxford where the King’s supporters served in the grand jury. The Oxford grand jury promptly indicted Colledge and he was subsequently tried, convicted, and executed. n25 Shaftesbury, seeing the power of the King to manipulate the grand jury situs, fled the country, as did the Foreman of the London grand jury. n26

Far from representing the invaluable role of the grand jury as a safeguard against political persecution, the Shaftesbury/Colledge cases illustrate the political vulnerability of the grand jury to political prejudices, and the power of the executive to ultimately manipulate the process to obtain rubberstamped indictments. Despite [*1165] the ironic outcome of the Colledge and Shaftesbury cases, courts continue to celebrate them “as establishing the grand jury as a bulwark against the oppression and despotism of the Crown.” n27

B. COLONIAL AMERICA AND POST-REVOLUTIONARY WAR

When the English settlers brought their institutions of government to their colonies in America, the grand jury was among them. In the colonies, the grand jury quickly became a means for the American settlers to express their grievances against the King’s officials and their policies. n28 As the opposition to British authority became more overt, grand juries played a key role. In 1765, Boston grand jurors refused to return an indictment against those accused of leading the Stamp Act riots. n29 As the dispute with Britain headed toward open conflict, the grand juries issued reports strongly attacking British rule. When war broke out, grand juries returned treason indictments against colonialists who sided with the British. n30 Citizens who were sympathetic to the Crown were disqualified from service on grand juries. n31

Although the Revolutionary War period may appear to be a time when the institution of the grand jury protected the individual against the arbitrary power of the government, with few exceptions, n32 the grand jury was not concerned with protecting the unpopular. Rather, fueled by the passion and prejudice of its members and the sentiments of the community, the grand jury primarily operated as an instrument to further the revolutionists’ opposition to British authority. n33 The grand jury did not serve as a bulwark to protect the dissenter. Instead, the grand jury reflected the predominant political opinion of the period. n34 Those accused [*1166] stood little chance of protection against unfounded accusation unless the grand jury members favored their political activity or ideas.

Once the United States gained its independence, the party in power, whether the Federalists or Republicans, used the grand jury for partisan purposes. For instance, when Congress passed the Alien-Sedition laws n35 (which punished supporters of the French Revolution and critics of President Adams), the Federalists, in power under John Adams, convened grand juries which were instructed by highly partisan Federalist judges, and indicted numerous Republicans under these laws. These grand juries sat in New England and the Mid-Atlantic states, federalist strongholds where grand jurors were hostile to Republican ideals. Rather than protecting the unpopular ideas of the Republicans, these grand juries rushed to return sedition indictments. n36

Similarly, when Jefferson and the Republicans obtained power, they seized upon the grand jury to punish their political enemies. Jefferson’s administration tried repeatedly to indict Aaron Burr, an opponent of the Republicans and a disgraced Federalist. After two western grand juries refused to indict Burr for vague conspiracies to overthrow the Union, a third grand jury was convened in the Republican stronghold of Virginia. The overly cautious Republicans packed the jury. Despite several challenges to individual jurors, Burr could not counteract the overwhelming Republican bias, and true bills were returned against Burr and his alleged co-conspirators charging that they had levied war upon the United States. n37 Again, as in the case of Shaftesbury and Colledge, the refusal of prior grand juries to return indictments failed to deter a politically motivated executive from finding a sympathetic venue to obtain an indictment.

C. CIVIL WAR AND RECONSTRUCTION

The practice of grand juries during the pre-Civil War, Civil War, and Reconstruction periods illustrates again that the actions of the grand jury served the interests of those in power. n38 In the South, [*1167] one of the primary roles of the grand jury was to enforce the slavery laws. n39 Frequently, these grand juries indicted outspoken opponents of slavery for sedition or inciting slaves. n40

As abolitionists in the North increased their attacks against slavery, Southern grand juries took an increasingly active role in trying to prevent anti-slavery literature and speakers from coming into their states. n41 In addition, Southern grand juries were active in charging people with harboring runaways or with encouraging and assisting fugitives to escape. n42

In contrast, in the antebellum North, the slavery question rarely concerned grand juries. n43 The Fugutive Slave Law of 1850 made persons who assisted runaway slaves liable for a fine of $ 1,000 and six months imprisonment. n44 Abolitionists opposed the law [*1168] vehemently. Organized groups accomplished several dramatic rescues of recaptured slaves from prisons. Consequently, these rescues resulted in efforts to indict the liberators and thus, the appearance of the grand jury. n45 During one famous incident, a crowd of Bostonians, led by the abolitionist leader Theodore Parker, attacked the federal courthouse in an unsuccessful attempt to liberate an alleged fugitive slave from Virginia, Anthony Burns. n46 There was armed resistance to this attempt, and in the cross fire, one of the guards was killed. When the case was brought before a grand jury, the proslavery judge, in a strongly worded charge, directed the grand jury to enforce the Fugitive Slave Law and indict Parker and his colleagues. n47 In spite of this clearly improper pressure, the grand jurors remained unpersuaded and returned no indictments. Several months later, however, prosecutors convened another grand jury and presented the case again. The pro-slavery judge reiterated his prior charge; this time, however, the grand jury was specifically packed with opponents of the abolitionists. Predictably, the grand jury indicted Parker for willfully obstructing a U.S. Marshal. n48 Once again, those in power were able to manipulate the grand jury to obtain their own political desires.

During the Civil War, grand juries continued to play an active role. The results of their deliberations depended upon which side the local populace supported. In the North, grand juries frequently were concerned with desertion, draft evasion, and defrauding the government. Particularly in the border states, where sympathies were divided, charges of disloyalty and treason were frequently the subjects of the grand juries’ work. n49 In some instances, government officials feared that overzealous grand juries that were swept up in the passions of the Civil War would indiscriminately return treason indictments which allowed for the death penalty. n50

[*1169] In the South, the newly established Confederate States of America adopted the existing court mechanisms, including the courtrooms, personnel, and even the pending cases. Similarly, the confederacy instituted the grand jury. In some Southern jurisdictions, new grand jurors were not even chosen; the Marshal merely summoned those drawn at the last term. n51 Southern grand juries, like the grand juries in the North, also addressed problems of treason, harboring deserters or war profiteering, but, as expected, they operated from the perspective of protecting the confederacy. n52

The defeat of the Confederacy brought federal grand juries back to a South now controlled by the Reconstructionist policies of the victorious North. The Southern state grand juries, however, remained in the control of the white southerners who excluded blacks and white supporters of Reconstruction. n53 This contrast between the work of the federal and state grand juries in the South after the Civil War, underscores the political utilization of the grand jury.

White southerners used the state grand jury to obstruct Negro political participation and suffrage, as well as to discredit and harass officials of the Reconstructionist government. Southern grand juries indicted Reconstructionist Republicans on false and trumped-up charges. Although few indictees actually stood trial, the indictments hindered the ability of government officials to implement Reconstructionist policy. By the end of 1874, entire slates of Reconstructionist officials faced criminal charges in many southern counties. n54

The grand jury was an integral part of the former slaveholders’ “reign of terror” which ultimately was successful in defeating the progressive policies of Reconstruction. State grand juries not only harassed and intimidated blacks and Reconstruction officials, but refused to enforce the new laws guaranteeing black people the right to vote. Radical legislatures passed laws against the Ku Klux Klan, but found them impossible to enforce because the grand juries refused to indict Klan members. n55

[*1170] In contrast, federal grand juries which included many black members, were much more willing to enforce new federal legislation punishing interference with Negro sufferage and to indict Klan members for their activities. n56 By the end of 1873, well over 1300 cases crowded the dockets of federal courts pursuant to grand jury indictments. n57 While only the leaders of the Ku Klux Klan or other opponents of Reconstruction were tried, Republican leaders used wholesale indictments as a form of repression against their opposition.

Gradually, however, the Southern reactionary forces, led by its military arm, were able to take power and defeat all the gains of Reconstruction. By 1876, only two Southern states — South Carolina and Louisiana — were left within the control of the Reconstructionists. n58 By the following year, when Rutherford B. Hayes, in order to obtain the presidency, agreed to surrender political control of the remaining two states to the Southern Democrats, Reconstruction ended. n59 Since then, Southern grand juries, both state and federal, have consistently repressed black people in their struggle for freedom. Hundreds of blacks, who were excluded from serving on grand juries or petit juries, were indicted on false charges and [*1171] executed or imprisoned for long periods. n60

D. THE LABOR MOVEMENT

In the following decades, the government used the grand jury to repress the emergence of a militant movement on behalf of working people in the late 19th and early 20th centuries. Led by foreign born immigrants, anarchists, and syndicalists of the Industrial Workers of the World (IWW), the labor movement naturally incurred the wrath of powerful business interests and the governmental administration.

Grand juries indicted thousands of labor organizers, union leaders, and activists on framed-up charges, ranging from unlawful assembly to murder and bombings. n61 Rather than protecting the innocent from political persecution, the grand jury was the willing hand maiden of oppression.

For example, grand juries tried to suppress the movement by labor for an eight-hour work day. Cook County prosecutors convened a grand jury when police provacateurs allegedly detonated a bomb in Chicago’s Haymarket Square among a crowd of protesting workers who were demanding the eight-hour working day. Rather than conducting an impartial investigation to determine those responsible for the bombing and subsequent shooting, public officials whipped up public hysteria against the protesters and their leaders. n62

The judge presiding over the grand jury fueled the hysteria by instructing the grand jury “that anarchism must be suppressed.” n63 The public opprobrium visited upon the protest leaders influenced the grand jurors who were already determined to have the anarchist leaders pay for the deaths and rioting in Haymarket Square. Thus, the grand jury indicted thirty-one anarchists and socialists. Consequently, eight of the most effective labor agitators were tried. Of the eight, only two were at the scene when the bomb exploded. n64

[*1172] During the same week of the Haymarket incident, over 17,000 union workers in Milwaukee went on strike for an eight-hour day. The use of scabs and strikebreakers led to street battles between the workers and the police. A grand jury was convened and the presiding judge, James A. Mallory, urged them to expose the “anarchists and demagogues” responsible for the violence and bloodshed. The grand jury, which was primarily composed of businessmen, had no sympathy for the strikers. It returned an indictment for rioting and conspiracy, charging seventy leaders of the eight hour movement, including the entire district executive board of the Knights of Labor in Milwaukee. n65

In 1894, when workers at the Pullman Plant in Illinois went on strike, members of the American Railway Union, in solidarity refused to handle trains with Pullman cars. The strike spread among railway workers across the nation, resulting in fighting between militia and strikers. Federal authorities in Chicago summoned a special grand jury to indict the strikers. The presiding judge denounced the strike and called upon the grand jurors to vindicate the law. Obediently and in keeping with official opinion, the jurors returned conspiracy indictments for interfering with the United States mail against Eugene V. Debs, president of the American Railway Union, three other officers of the Union, and forty-three striking workers. n66 Federal grand juries throughout the country also indicted striking workers. In St. Paul, sixty strikers faced charges of interfering with the mails, while in San Francisco, jurors indicted one hundred and thirty-four strikers on the same charge. n67

During World War I, grand juries indicted hundreds of IWW members, Socialists, other militant labor leaders, n68 and anti-war activists [*1173] under sedition and espionage charges. n69 In almost all cases, rather than safeguarding the rights of protest and dissent, the grand jury enthusiastically returned indictment after indictment, punishing activists for the exercise of their right of free speech. In one case, a grand jury in the Northern District of Illinois indicted over one hundred IWW members, including its leader, Big Bill Haywood, for sedition, espionage, and conspiracy to oppose the Selective Service Act. n70 Grand juries throughout the United States returned similar mass indictments. n71 A federal jury in Canton, Ohio even indicted the veteran socialist, Eugene V. Debs, at the age of 63, for making a speech against the war and in support of socialism. Subsequently, Debs was convicted and sentenced to ten years in prison. n72

In addition to attacking the labor movement during this period, the government used the grand jury to attack the popular black nationalist [*1174] leader Marcus Garvey. In January 1922, a federal grand jury indicted Garvey for mail fraud when his Black Star steamship line failed. Garvey was imprisoned for two years and then deported to Jamaica. n73 Simultaneously, the government was ignoring the lynchers and exploiters of black people and using the grand jury power to suppress the leadership of the black nationalist movement. n74 This pattern repeated itself throughout the century. n75

In periods of great turmoil and dissent, when the exploited and oppressed vocally expressed their views, often for the first time, the grand jury, rather than protecting the rights of the dissenters, stood on the side of the rich and powerful, to protect the status quo. [*1175]

E. POST-WORLD WAR TWO AND THE COLD WAR

1. Birth of the Investigative Grand Jury

With the urbanization of the United States, the proliferation of crime, and the expansion of federal criminal jurisdiction, the grand jury could no longer exercise even the minimal level of independence that it had been able and willing to exercise in the past. The volume and complexity of the cases to be reviewed by the grand jury led to its inevitable abdication to the prosecutor of any power. In the past, the grand jury had not lived up to its reputation as a shield against the abuse of government power. Now it developed into a rubber stamp of approval for prosecutory requests for indictment, n76 [*1176] and its subpoena power became a valuable tool for wide ranging governmental investigations.

It is this later inquisitory power that appeared strongly during the Cold War period after World War II. Fueled by the fear of alleged communist subversion that was generated by ambitious politicians, the government used grand jury investigations and indictments as substitutes for a progressive foreign and domestic policy. Loyalty oaths n77 and congressional investigating committees arose to ferret out communists, spies, and sympathizers from all sectors of American society. In January 1947, the House Unamerican Activities Committee (HUAC) announced an eight-point program to expose communists and communist sympathizers in the federal government, and to reveal the “outright” communist control of “some of the most vital unions.” n78

The HUAC investigations sought to expose people as communists or former communists and force them to name other friends or co-workers who were also present or former communists. This created a culture of inquisition and public denunciation. People were pressured to cooperate or suffer public disgrace and loss of jobs and career. n79

President Truman, eager to appear as hard on communism as the legislative branch, and simultaneously, to isolate and discredit his opponent Henry Wallace and the Progressive Party, seized upon the power of the grand jury to return indictments against twelve top leaders of the Communist Party shortly before the Progressive Party Presidential Convention. The governor charged the communist leaders under the Smith Act with conspiring to advocate the overthrow of the government. Truman, referring to the indictment, stated: “the fact that the communists are guiding and using the third party shows that this party does not represent American ideals.” n80 The public perceived the grand jury indictments, coupled with Truman’s statement, as a warning that anyone working to help the Wallace campaign might well face prosecution under the Smith Act. In October, federal grand juries began wide-ranging investigations [*1177] into Communist Party activites in Ohio, Colorado, and California, subpoenaing party records and numerous activists. n81

As evidence of the government’s desire to lock up its citizens without trial, Congress passed the Internal Security Act in 1950, which in essence included an emergency detention provision granting legal authority for mass round-ups of dissidents, and their indefinite detention without trial during an internal security emergency declared by the President. n82 The Attorney General’s belief that a person would probably conspire in the future to engage in acts of espionage or sabotage was the sole basis for detention. In addition, the Justice Department appropriated $ 775,000 in 1952 to set up six detention camps in Arizona, Florida, Pennsylvania, Oklahoma, and California. n83

[*1178] This flood of repressive legislation and the use of administrative and legislative tribunals would seem to have rendered the investigative power of the grand jury unnecessary. This was not the case. In some instances, the grand jury carried out supplemental investigations of its own. n84 Even the United Nations was not spared from the grand jury/congressional witch hunt. In 1951, a Southern District of New York grand jury investigating alleged communist influence and spying at the U.N., subpoenaed forty-seven past and present American employees of the United Nations. Many of those subpoenaed asserted their fifth amendment right to silence. U.N. Secretary General Trygve Lee, under pressure from the U.S. prosecutor, dismissed almost all those subpoenaed from their jobs, insisting that a pro-communist American was an unrepresentative American. Later, under countervailing pressure within the U.N., Lee eventually condemned the use of the grand jury as a witch hunt and refused to comply with a subpoena upon himself to appear before the grand jury. n85

Following the example of the congressional investigating committees, prosecutors expanded the power of the grand jury to gather information against unpopular political activists and movements. The grand jurors were not being asked to review evidence already accumulated by the prosecution to determine whether such evidence was sufficient for an indictment — the stated constitutional purpose of the grand jury. Rather, the primary purpose of these “investigative” grand juries was not to evaluate evidence but to discover it. Those subpoenaed before these “investigatory” grand juries were not witnesses to criminal activity but targets of the investigation and sources of political intelligence. n86

There was one obstacle to the effectiveness of this type of inquisition — the witness’ fifth amendment right to silence. In the face of the escalating attacks on progressive activists throughout the cold war period, witnesses increasingly relied upon their fifth amendment right to refuse to answer questions. n87

[*1179] 2. The Forced Immunity Statute

Distressed by witnesses invoking this fundamental constitutional right of the fifth amendment, the government took steps to remove this obstruction. In 1954 Congress passed a special immunity law n88 (“the Act”), which applied only to matters of internal security. Upon a grant of transactional immunity n89 approved by the Attorney General, the Act compelled a witness to give testimony before a congressional committee or a grand jury. This was the first time that legislation provided for compulsory testimony in return for immunity in an area concerning political thought and activity. Prior to this Act, immunity legislation was used exclusively in the field of economic regulation. n90 Upon the passage of the 1954 Act, President Eisenhower announced that “[t]his Act provides a new means of breaking through the secrecy which is characteristic of traitors, spies and saboteurs.” n91 The cold war, anti-communist hysteria period was coming to an end rapidly, however, and in the nine years after its passage, the Act was used only three times. n92 Nevertheless, the mechanism for the grand jury as a political inquisition and a tool of internment was in place. It took only the re-emergence of political dissent for the government to call the grand jury back into action.

F. THE NIXON YEARS AND THE GRAND JURY

The blatant use of the grand jury for harassment of political activists and intelligence gathering reached its height under the Nixon Justice Department. Between 1970-1973, over one hundred grand juries were convened in 84 cities; they subpoenaed over 1,000 activists. n93 A special section of the Justice Department, Internatl Security [*1180] Division (“ISD”), which coordinated the various grand jury inquisitions, victimized all sectors of the anti-Vietnam war movement. Student activists, n94 Vietnam veterans, n95 the Catholic left, n96 Weathermen, n97 the anti-draft movement, n98 and the academic community n99 were all targets of grand juries. Other grand juries attacked the women’s movement and the black nationalist movement. n100 Armed with Title II of the Organized Crime Control Act of 1970, n101 which allowed for the first time the conferring of [*1181] “use immunity” n102 to supplant a witness’ fifth amendment right, the Justice Department was able to carry out wide ranging political intelligence gathering.

Numerous examples clearly establish the political motivations of the Nixon Justice Department’s use of the federal grand jury. One such example involved Leslie Bacon, a 19 year-old anti-war activist, who was arrested on a material witness warrant in Washington, D.C. on the eve of May Day demonstrations there. She was flown to Seattle where she was brought before a grand jury allegedly investigating the bombing of the nation’s Capitol Building. She was brought before the grand jury thousands of miles from her home without adequate consultation with a lawyer and questioned for several days in great detail about her personal and political life. n103 Similarly, twenty-three leaders of the “Vietnam Veterans Against the War” were subpoenaed on short notice to appear before a grand jury convened in Talahassee, Florida on the same day that they were to attend a planned demonstration at the Democratic National Convention in Miami. Many were simply asked their name and address and then released, and others were imprisoned for contempt. n104

Testifying before a House Judiciary sub-committee investigating the tactics of an ISD grand jury which had subpoenaed five pro-Republican Irish-Americans from New York to a grand jury in Fort [*1182] Worth, Texas, n105 Senator Edward M. Kennedy captured the essence of the Nixonian use of the grand jury:

Over the past four years, under the present administration, we have witnessed the birth of a new breed of political animal — the kangaroo grand jury — spawned in a dark corner of the Department of Justice, nourished by an administration bent on twisting law enforcement to serve its own political ends, a dangerous modern form of Star Chamber secret inquisition that is trampling the rights of American citizens from coast to coast. n106

After a period of disorganization and confusion, progressive organizations began to develop a unified response to the grand jury attacks. The National Lawyers Guild, a progressive national legal organization, created a grand jury task force to coordinate legal strategies to combat the political grand jury. n107 Civil rights, church, and labor groups established the “National Coalition to End Grand Jury Abuse.” n108 Later a Grand Jury Project was formed in New York, which published a newspaper, Quash, and advocated resistance to grand jury subpoenas. Soon, many subpoenaed witnesses agreed that the only way to respond to the grand jury was to refuse to answer its questions and to persist in such refusal in the face of immunity and contempt. Once a witness began to answer questions, the door was open, leaving no effective way to pick and choose which questions to answer.

The position of “non-collaboration” with the political grand jury was thereby established. The theory behind non-collaboration was that witnesses could deprive the grand jury witch hunts of the information they sought, thereby subverting their mission only by a unified position of refusal. n109 Numerous witnesses followed the principle of non-collaboration. Some escaped civil contempt citations and jail, but many others spent months in jail without charge, until the life of the grand jury ended. n110

Watergate drove the Nixon administration and the coordinate [*1183] work of the ISD out of power, but the government’s use of the grand jury as an instrument of repression and internment was far from over.

G. THE GRAND JURY TODAY

The use of the federal grand jury by the Department of Justice against the Puerto Rican Independence Movement in the United States and Puerto Rico, clearly illustrates the potential for far reaching abuse of this power in the present. The use of the federal grand jury against the Independence movement in Puerto Rico dates back to 1936, when a grand jury investigating an alleged conspiracy to overthrow the U.S. Government in Puerto Rico subpoenaed numerous officials of the Nationalist Party of Puerto Rico. The grand jury asked the subpoenees for the records of the Nationalist Party. When the then Secretary General, Juan Antonio Corretjer, came forward claiming to have custody of the records, the subpoenas against the others were dismissed. Corretjer, however, refused the grand jurors’ request to produce the records, claiming that a U.S. federal grand jury had no legitimate jurisdiction in Puerto Rico. n111 As a result of his refusal, Corretjer received a one year sentence in the federal prison in Atlanta, Georgia. n112

Corretjer’s refusal to recognize the grand jury has survived to the present day as a position of political principle among a broad spectrum of the Independence movement. Independence advocates view the U.S. federal grand jury as an illegal instrument of colonial authority whose powers of inquisition they must resist. n113

The use of the grand jury against the Independence movement in the United States began in response to its growing public exposure and to the emergence of a clandestine pro-Independence organization called the Fuerzas Armadas de Liberacion Nacional (FALN), which had claimed credit for a series of bombings in the United States. n114 In 1977, a federal grand jury sitting in the Southern [*1184] District of New York which was investigating activities of the FALN, subpoenaed Maria Cueto, who was then the Executive Director of the National Commission on Hispanic Affairs n115 (the “commission”) of the Protestant Episcopal Church, and her secretary, Raisa Nemekin, whom the government believed might have information about FALN members. n116 Prior to the subpoenas of these women, the church authorities had complied, without legal challenge, with a grossly overbroad subpoena duces tecum which allowed the FBI access to all the Hispanic Commission files. n117

Maria Cueto and Raisa Nemekin refused to testify before the grand jury, claiming that the government had no right to require them to give information about their community service work as lay ministers. They also claimed that if they cooperated with a secret government inquisition, they would destroy their community’s trust in them. Both women were jailed for civil contempt in March of 1977. n118 In August of that year, the same grand jury subpoenaed Julio Rosado and Luis Rosado — brothers, Puerto Rican Independence activists, and former members of the Hispanic Commission — and a third brother, Andre Rosado, a community health worker. Invoking the principal of “non-recognition” of the grand jury’s right to investigate the Independence movement and accusing the government of trying to disrupt their political work, all three brothers refused to testify and were jailed for civil contempt. n119 In Chicago, another grand jury investigating the FALN was convened. It subpoenaed six Puerto Rican independence supporters from Chicago and three Mexican political activists from the southwest. Initially, all refused to cooperate with the grand jury, and four ultimately [*1185] were jailed for civil contempt. n120 Thus, within a matter of months, nine Hispanic political activists had been jailed for refusing to collaborate with the government’s grand jury investigation.

Eleven months after the incarceration of Maria Cueto and Raisa Nemekin, before the life of the grand jury had ended, a United States district judge released the two women, determining that further incarceration would have no coercive effect because the women, although wrong, were sincerely committed to their principle of not testifying. n121 The court also found that despite several ex parte, in camera attempts, the government made no showing that the women had any current information relevant to any investigation concerning the FALN. n122 The other eight imprisoned grand jury resisters were held in prison until the respective lives of the grand juries ended, nine months for the men in New York and five months for the men in Chicago.

In November of 1981, the government again subpoenaed Maria Cueto, Ricardo Romero, Julio Rosado, Andre Rosado, and Steven Guerra, the chairperson of an organization initiated by the Movimiento de Liberacion Nacional (“MLN”) n123 — “the National Committee Against Grand Jury Repression.” n124 The grand jury had moved across the bridge to Brooklyn in the Eastern District of New York, but still it was investigating the FALN. The government had no articulable basis to believe that the witnesses who had gone to jail for refusing to provide information to the grand jury in the past and who, since their release from prison had been politically outspoken against the grand jury, would now cooperate. In fact, the grand jury had no reasonably expectation of gathering any evidence by subpoenaing these political activists. Rather, the only effect of resubpoenaing [*1186] them was to disrupt their political work and cause their incarceration.

In response to substantial protest from sectors of the Episcopal Church as well as within the Puerto Rican and Mexican communities, the United States Attorney declined to proceed with contempt charges when each witness refused to testify or even appear before the grand jury. The subpoenaes were continued with assurances that counsel for the witnesses would be contacted if further proceedings were required. n125

 

Nine months later, shortly after a change in United States Attorneys, each of the five witnesses were arrested at gun point by squads of FBI agents on a sealed indictment charging each with criminal contempt for refusing to testify before the grand jury. Following these arrests, the FBI issued a nation-wide press release claiming to have arrested the “last unincarcerated leadership of the FALN.” n126

The publicity generated by the arrests and the press release was highly prejudicial. Special courtroom security was instituted for the “FALN trial” to be held in federal court in Brooklyn. The apparent government strategy was to accuse the defendants in the media as the FALN, but in the courtroom to charge them with refusing to testify before a grand jury.

Because the criminal contempt penalty has no maximum limit, n127 defendants were entitled to a jury trial. On the eve of trial, the prosecution requested an anonymous jury in which the names, addresses, and work places of the jurors were not disclosed. As the justification for an anonymous jury, the government again publicly accused the defendants of being part of the FALN. The court granted the request for an anonymous jury even without an evidentiary hearing. n128

At trial, the issue for the jury was limited to whether or not the defendants testified before the grand jury. Even though the outcome of the trial was a foregone conclusion, the defendants were able to introduce some reasons for refusing to collaborate with the grand jury, including their perception of the grand jury as a political weapon against the Independence movement. In addition, they were able to introduce character witnesses from the Episcopal [*1187] Church. n129 The jury deliberated for 16 hours and found all defendants guilty. n130

The government then sought to turn the sentencing proceeding into a trial of the defendants’ FALN affiliations. The government tried to avoid the basic constitutional protections afforded to all accused by charging the grand jury resisters without sufficient evidence of specific acts of criminal wrongdoing. Asking for a sentence of 15 years, the government submitted a sentencing memorandum accusing the defendants of FALN membership. The court refused to accept the memorandum or hold a hearing and, despite the strenuous protest of the government, sentenced each defendant to three years in prison. n131 The government, however, released the sentencing memorandum to the press, resulting in the public dissemination of its accusations.

In the midst of the trial, the same grand jury sitting in Brooklyn subpoenaed two Independence leaders from Puerto Rico. n132 This was the first time that activists from Puerto Rico had ever been subpoenaed to a grand jury sitting in the United States. n133 Again, the [*1188] government charged the two leaders with criminal contempt when they refused to collaborate with the grand jury. Miraculously, the first jury trial ended in a hung jury when several jurors refused to convict the defendants after hearing impassioned closing arguments from the defendants themselves. Several months later, the two men were retried, convicted, and sentenced to two years in prison. n134

The U.S. parole commission has continued the government’s internment policy despite the lack of any evidence, accusing the grand jury resistors of aiding the FALN and denying them any parole. This decision has been held arbitrary and capricious by a federal court in Washington and is now on appeal. n135

The black nationalist movement provides another poignant example of the misuse of the federal grand jury as a prosecutor’s investigative tool rather than as a protective device for the public. In the last several years, a government grand jury from the Southern District of New York, allegedly investigating the activities of the Black liberation activity, has incarcerated sixteen black nationalists and their white supporters for their refusal to cooperate with the grand jury inquiry. n136 The government is intent on pursuing a policy of subpoenaing before grand juries political activists who it is well aware will not testify or otherwise cooperate as a matter of political principle. The only result of such a policy is the imprisonment of activists, without specific charge or trial, for the exercise of their political right to silence.

[*1189] III. THE POLITICAL RIGHT TO SILENCE

As the historical review above illustrates, the grand jury has never met its stated purpose of protecting the individual against the power of the government. In fact, the grand jury has evolved into a prosecutor’s tool of investigation, a use never contemplated by the Founding Fathers. When the authors of the Bill of Rights incorporated the grand jury into the fifth amendment, they certainly did not contemplate that it would become an instrument for the prosecution in government initiated investigations, “let alone [that] government initiated investigations [would be] supported by the ever-expanding repertoire of federal criminal statutes, the burgeoning technology of electronic surveillance, and the increasingly dangerous combination of the subpoena, contempt and immunity powers.” n137 Unfortunately, the courts have continued to ignore the government’s transformation of the grand jury power, relying instead upon the fiction that the grand jury is an independent citizens panel which safeguards the accused against abuse by the government. n138

A fair reading of the origins and purposes of the fifth amendment, coupled with the rights of political freedom contained in the first amendment, n139 should create a right to “political silence,” barring any compelled testimony before a grand jury touching a witness’ political activity and associations. Political activists should not be forced to choose between providing the government with political intelligence about their movement or going to prison.

The right of silence incorporated into the fifth amendment as the privilege against self-incrimination has its origins in the opposition of religious and political dissenters to the English institutions of inquisition, the Court of High Commission, and the Star Chamber. n140 Historically, early dissenters, refusing to be coerced by government inquisitions, courageously asserted the right of silence as part of the resistance to governmental attacks on freedom of speech and written expression. Significantly, the dissenters asserted this [*1190] right not only as to their own activity, but to the activity of friends and political associates as well. They claimed a broad right of silence as to all political activity. n141

The Supreme Court has ignored the significance of the political origins of the right to silence in several cases upholding congressional immunity legislation. In Brown v. Walker, n142 a five justice majority upheld an act which supplanted the fifth amendment and compelled testimony in return for transactional immunity. The statute in question, however, limited the grant of immunity to matters concerning the Interstate Commerce Commission and consequently did not implicate first amendment issues. Nonetheless, Justice Field, speaking for the minority, articulated the understanding of the four dissenting justices of the scope of the right to silence:

The [fifth] amendment also protects [the witness] from all compulsory testimony which would expose him to infamy and disgrace, though the facts disclosed might not lead to a criminal prosecution. It is contended, indeed, that it was not the object of the constitutional safeguard to protect the witness against infamy and disgrace. It is urged that its sole purpose was to protect him against incriminating testimony with reference to the offence under prosecution. But I do not agree that such limited protection was all that was secured. As stated by counsel of the appellant, “it is entirely possible, and certainly not impossible, that the framers of the Constitution reasoned that in bestowing upon witnesses in criminal cases the privilege of silence when in danger of self-incrimination, they would at the same time save him in all such cases from the shame and infamy of confessing disgraceful crimes and thus preserve to him some measure of self-respect . . . .” It is true, as counsel observes, that “both the safeguard of the Constitution and the common law rule spring alike from that sentiment of personal self-respect, liberty, independence and dignity which has inhabited the breasts of English speaking peoples for centuries, and to save which they have always been ready to sacrifice many governmental facilities and conveniences. n143

The majority’s position in Brown, and in subsequent cases, n144 is that the fifth amendment is adequately satisfied by a grant of immunity from criminal prosecution. This position may be appropriate when it is applied to economic regulation, but when the government seeks to compel testimony concerning political beliefs, activities, and associations, however, immunity from potential criminal prosecution is inadequate. In these situations, witnesses should be [*1191] afforded the fifth amendment protection giving them the right not to testify.

The Supreme Court, however, did not follow this reasoning and remained consistent with its decision in Brown when it decided Ullman v. United States n145 almost fifty years later. In Ullman, the Court upheld an immunity act directed toward matters of internal security. It ruled that the act was sufficient to supplant a witness’ fifth amendment right to refuse to answer questions about his communist affiliations. n146 In its analysis, the majority failed to apply the political context of the evolution of the fifth amendment right of silence — the refusal of the witness to disclose his unpopular political beliefs and those of his associates — or to give any consideration to the relation between the first amendment and the right to silence.

In his dissent, however, Justice Douglas, joined by Justice Black, clearly articulated the personal values of freedom of expression and self-dignity from which the fifth amendment arose. Relying on its historical antecedents, Douglas argued that the purpose of the fifth amendment, in addition to preventing criminal self-incrimination, is to protect the conscience and dignity of the individual and to prohibit any compulsory testimony which would expose the individual to infamy and disgrace. n147 Concluding, Justice Douglas stated:

The critical point is that the Constitution places the right of silence beyond the reach of government. The Fifth Amendment stands between the citizen and his government. When public opinion casts a person into the outer darkness, as happens today when a person is exposed as a Communist, the government brings infamy on the head of the witness when it compels disclosures. That is precisely what the Fifth Amendment prohibits. n148

With the limited perspective of the fifth amendment expressed by the majority in Ullman as a starting point, the further erosion of the historic protection of the fifth amendment was inevitable. Twenty years later, at the height of the Nixon Administration’s use of the grand jury as a political weapon, the Supreme Court held that limited use immunity provided in the 1970 Organized Crime Control Act n149 afforded all the protection required by the fifth amendment. n150 With this decision, the government, using the subpoena [*1192] power of the grand jury, was able now to compel testimony without even guaranteeing complete immunity from prosecution.

In upholding the grand jury’s “right to every man’s evidence,” courts often cite to the Supreme Court’s language in Blair v. United States: n151 “[T]he giving of testimony and attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned. . . .” n152 This general statement, however, was significantly qualified in the same opinion, as the Court went on to state:

The duty, so onerous at times, yet so necessary to the administration of justice according to the forms and modes established in our system of government . . . is subject to mitigation in exceptional circumstances; there is a constitutional exemption from being compelled in any criminal case to be a witness against oneself; . . . some confidential matters are shielded from consideration of policy, and perhaps in other cases for special reasons a witness may be excused from telling all that he knows. n153

Once it is understood that the grand jury’s right to every man’s evidence is not absolute, and for “special reasons witnesses may be excused,” n154 the political right to silence should not be seen as such an affront to the mythical sanctity of the grand jury. In fact, in addition to fifth amendment rights, the rights afforded by the first amendment ensuring political freedom n155 should be preferred when raised by a witness in opposition to testifying before a grand jury and should create a constitutional bar to compulsory immunity and forced cooperation.

In addition to the first amendment, in relation to the Puerto Rican independence movement, n156 there is a fundamental internationally recognized human right to self-determination which must act as a bar to compelling cooperation by Puerto Rican Nationals with a United States Government controlled grand jury. n157 The coercive [*1193] use of the grand jury to investigate the Puerto Rican independence movement and intern its leaders and activists for refusing to provide information or cooperate n158 constitutes an illegal interference with the right of the Puerto Rican people to exercise their right to self-determination. In August of 1983, the United Nations’ Special Committee on Decolonization adopted a Resolution on Puerto Rico in which it noted that “its members were concerned also by the intensification of repressive measures against the Puerto Rican independence forces, including the activities of the federal Grand Jury utilized by the United States as an instrument of pressure and intimidation against Puerto Rican Patriots.” The U.N. Resolution went on to demand the “cessation of all represssive measures against Puerto Rican independence forces, including the intimidating activities by the federal Grand Jury which were denounced before the Committee.” n159

IV. CONCLUSION: GRAND JURY REFORMS

Two conditions should preclude the government from compelling witnesses’ testimony: if subpoenaed witnesses make colorable [*1194] claims before a district judge that they are part of a political organization or movement, n160 and if the testimony sought concerns their political associations or the activities of others within the movement. n161 This standard is justified even though it may seem inadequate to protect the interest of law enforcement because the grand jury is an inappropriate vehicle for the government to pursue such evidence. The grand jury was never intended to act as a restraint on the unfettered exercise of political rights in the interests of police power.

Given the Supreme Court’s disturbing approval of use immunity n162 and its subsequent rejection of a newsperson’s right to refuse to reveal confidential sources and information to a grand jury, n163 it is highly unlikely that the Court, as it is constituted presently, would uphold a political right of silence under the first and fifth amendments or under the U.N. Charter. Further, despite the Court’s language in United States v. Dionisio, n164 that “the Constitution could not tolerate the transformation of the grand jury into an instrument of oppression,” n165 there is little prospect of the Court condemning the internment use of the grand jury power.

Rather than the courts making the change, public education of the true history of the grand jury and its present day repressive use, [*1195] coupled with congressional lobbying efforts n166 for restrictions on the grand jury power, are more likely to accomplish some limited changes at the present time.

In any forum, the advocate of restrictions on the grand jury power against political activists will have to meet the argument that law enforcement needs the broad investigative power of the grand jury to fight “terrorism.” It is the contention of our constitutional system, however, that the expediency of law enforcement is not allowed to outweigh the fundamental freedoms of the individual. The fact that the purpose of the grand jury never was to conduct general investigations into criminal activity and that Congress has rejected giving a power of investigative subpoena to the FBI or Justice Department attorneys n167 support this contention. Our constitutional ideals suffer from a government that, under the guise of fighting terrorism, emasculates the prohibition against detention without specific charge and trial and disregards the right to be free from political inquisition. These policies sound frighteningly like the justifications of foreign governments for their draconian internment policies with which we so emphatically express our disapproval. n168

In actual practice, the use of imprisonment to coerce cooperation with the grand jury has been of little success in political cases. While the internment of activists has disrupted their political work, in almost all cases it has not produced testimony or cooperation. Witnesses whose refusal to testify is based upon the political principle of resistance to the grand jury inquisition have, in most cases, maintained this resistance despite substantial periods of incarceration. n169 Just like the resisters to the Star Chamber and the High Commission, the modern day resister’s sense of justice and commitment not to betray his or her political movement is far stronger than [*1196] any fear of prison. For example, the government investigations into the Puerto Rican independence movement in the United States and Puerto Rico, despite the imprisonment of numerous activists, has had little effect in obtaining information about clandestine armed liberation groups. n170

The exercise of a government internment power only strengthens the resistance of the opposition political movements and denigrates the political freedoms guaranteed by the Constitution. We must no longer continue to blindly accept the fantasy of the grand jury as a protector of citizens against their overzealous government. Only through the demystification of the history of the grand jury and the explication of its present day potential for abuse, can we begin to educate people about the urgent need for political safeguards.

FOOTNOTES:

n1 In re Groban, 352 U.S. 330, 352-53 (1957) (Black, J., dissenting).

n2 In particular, the grand jury has been an instrument of political internment against the Puerto Rican and Black liberation movements, whose opposition to the U.S. government has an anti-colonial content similar to the liberation movements in Ireland and South Africa.

n3 Apartheid is the Republic of South Africa’s official policy of maintaining and promoting racial segregation and white supremacy. It has required a complex system of repressive legislation to perpetuate its existence. See generally J. DUGAR, HUMAN RIGHTS AND THE SOUTH AFRICAN LEGAL ORDER (1978); Potts, Criminal Liability, Public Policy and the Principle of Legality in the Republic of South Africa, 73 J. Crim. L. & Criminology 1061 (1982).

Several different laws allow for the arrest and detention of opponents of apartheid. THE TERRORISM ACT NO. 83 OF 1967 (S. AFR. STAT. 1980) created the new offense of “terrorism” defined as any activity likely “to endanger the maintenance of law and order.” The offense of “terrorism” includes activities inter alia that may result in the promotion of “general dislocation, disturbance or disorder,” “the achievement of any political aim, including the bringing about of any social or economic change, by violent or forcible means,” increasing “hostility between the white and other inhabitants of the Republic;” or embarrassment to “the administration of the affairs of the state.” The Terrorism Act authorizes under Sec. 6, any police officer of, or above the rank of lieutenant colonel to arrest, without warrant or charge, anyone suspected of being a “terrorist” as defined, or of possessing information relating to terrorists or terrorist offenses. Such detainees are held incommunicado often in solitary confinement until such time as the Commissioner of Police considers that they have replied “satisfactorily” to all questions put to them by their interrogators, or until it is felt that further detention will serve “no useful purpose.”

In addition, the Internal Security Act No. 79 of 1976 (S. AFR. STAT. 921 1980), formerly the Suppression of Communism Act of 1950, provides for two separate types of preventive detention without trial. Section 4 enables the Minister of Justice to order the preventive detention of any person whom he regards as a threat to State security or the maintenance of public order. Such people may be detained for up to seven days pending the formal delivery of a detention order and may thereafter be detained incommunicado and without trial for an indefinite period up to twelve months. Section 6 of the Act authorizes the Minister of Justice to detain any potential State witnesses in a political trial if it is considered likely that they would otherwise abscond or be subjected to intimidation. Witnesses detained in this way may be held for a period of six months or until the trial which their appearance is required is concluded. Further, periodic government proclamations declaring “A State of Emergency” allow the police to make wholesale arrests and maintain incommunicado detentions. See generally AMNESTY INTERNATIONAL, POLITICAL IMPRISONMENT IN SOUTH AFRICA (1978); J. DUGAR, supra note 3, at 110-23, 132-36.

n4 Beginning with the Special Powers Act of 1922, which empowered the Northern Ireland Minister of Home Affairs to make any regulation which he thought necessary for preserving the peace and maintaining order, the government has frequently used arrest without warrant and internment without trial against the Republican movement. See generally M. FARRELL, NORTHERN IRELAND: THE ORANGE STATE (1976); J. McGUFFIN, INTERNMENT (1973). Under the Special Powers Act, the most recent use of the internment power took place between 1971 and 1975 and resulted in the imprisonment by the British Army of hundreds of political activists and supporters of the Republic movement. Within the first day of the reinstitution of the law in 1971, over 350 men were interned, all Catholics and opponents of British presence in Ireland. The Army held some of those interned for almost five years without ever charging them with a crime or ever granting them a trial. Accompanying the use of internment was the widespread use of torture and other abusive interrogation techniques. See J. HOLLAND, TOO LONG A SACRIFICE: LIFE AND DEATH IN NORTHERN IRELAND SINCE 1969 (1981).

As a result of international condemnation of Britain’s internment policies, the British government was forced to abandon the direct use of detention without trial, but has dramatically restructured its legal system as applied to accused IRA members and supporters, deemed “terrorists.” A “Commission on the Legal Procedures to Deal With Terrorist Activities in North Ireland,” headed by Lord Diplock has instituted special procedures for the trial of suspected terrorists, codified in the Emergency Provisions Act of 1973 and 1978 and Prevention of Terrorism Act, 1976. These provisions allow for detention without access to counsel for 72 hours, trial without right to jury in special courts, and greatly liberalized standards for the admission of confessions.

In addition, to replace the intelligence gathering powers inherent in the exercise of internment, the Emergency Power Act and the Prevention of Terrorism Act allow for arrest on the basis of suspicion, and the temporary detention and questioning of any person concerning his identity, movements, and all matters involving recent explosions or other similar incidents. Under Section 11 of the Prevention of Terrorism Act, an offense is created for failing to come forward “without reasonable excuse” with information that a person believes “might be of material assistance” in preventing an act of terrorism or securing the apprehension of a terrorist. See also Northern Ireland Report, NATIONAL LAWYERS GUILD (1985).

Similarly, the detention laws of the State of Israel as applied against the Palestinian people living there, offend the basic constitutional principles of the United States. Under Israeli law, “a military commander may be ordered to direct that any person shall be detained for any period not exceeding one year . . . .” [Law of September 27, 1945, Concerning Defense Emergency Regulations (1945), Official Gazette, No. 1442, Supp.2 at 855, Art. 111]. There are no restrictions on the discretion of the military authorities and their decisions are not judicially reviewable. The justification usually advanced for such administrative detention is that it is employed only against persons — “terrorists” — that the authorities are convinced have engaged in criminal acts but whom it is impossible to convict under the Israeli rules of evidence. See Dershowitz, Preventive Detention of Citizens During a National Emergency — A Comparison Between Israel and the United States, 1 ISRAELI YEARBOOK ON HUMAN RIGHTS 295, 312 (1971). See generally Jabara, Israel’s Violation of Human Rights in Arab Territories Occupied in June 1967, NATIONAL LAWYERS GUILD. Ironically, before the creation of the State of Israel, Jews in Palestine were subjected to internment policies by the British Government. See generally A. RAMATI, BARBED WIRE ON THE ISLE OF MAN — BRITISH WAR TIME INTERNMENT OF JEWS (1980).

n5 Although the scope of this Article is not intended to discuss the political content of the anti-government movements in South Africa, Israel, and Northern Ireland, a cursory examination of each reveals a basic commonality among them. Each concerns the question of the land and who is rightfuly entitled to its benefits and resources, and each has been subjected to violent repression. While the leading organizations of these liberation movements have different ideologies, strategies, and tactics designed for the specific conditions of their respective homelands, each challenges the legitimacy of the government and agree that present policies of apartheid, colonialism, and alien subjugation (“settlerism”) must be removed by any means necessary — a position which has been repeatedly supported by the United Nations. Thus, these movements challenge the fundamental right of those in power to maintain their control and domination, and allow the existing governments to easily justify the use of repressive arrest and detention policies.

n6 See infra notes 108-33 and accompanying text.

n7 See infra note 139.

n8 See infra notes 27 and 135 and accompanying text.

n9 See infra notes 15-133 and accompanying text.

n10 See infra notes 22-26, and 37 and accompanying text.

n11 See infra notes 108-33 and accompanying text.

n12 Id.

n13 Id.

n14 See infra notes 134-57 and accompanying text.

n15 See generally L. CLARK, THE GRAND JURY, THE USE AND ABUSE OF POLITICAL POWER 7-9 (1976); H. FRANKEL & G. NAFTALIS, THE GRAND JURY: AN INSTITUTION ON TRIAL 6-9 (1977); Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 AM. CRIM. L. REV. 701, 701-10 (1972).

n16 See L. CLARK, supra note 15, at 8; Schwartz, supra note 15, at 703-09.

n17 See L. CLARK, supra note 15, at 8-9; Schwartz, supra note 15, at 708-09.

n18 Id.

n19 In 1215, the Lateran Council abolished trial by ordeal. See H. FRANKEL & G. NAFTALIS, supra note 15, at 9.

n20 Id. Originally, after the abolition of trial by ordeal, the accused was tried by the very same jury that had indicted him. Finally, it developed that a defendant could strike from the trial jury any members of the grand jury that indicted him. Thus emerged the petit jury. H. FRANKEL & G. NAFTALIS, supra note 15, at 9.

n21 Id.

n22 See Schwartz, supra note 15, at 710-21.

n23 Id.

n24 Id.

n25 See Schwartz, supra note 6, at 75; L. CLARK, supra note 15, at 10-12.

n26 See Schwartz, supra note 6, at 75. Charles II was also determined to remove the power of the Protestant (Whig) sheriffs to pick other Whigs to sit on London juries. Shortly after a no bill (ignoramus bill) was returned in the Earl of Shaftesbury’s case, the Royalists were able to fix the sheriff’s election in the London borough, thereby assuring the election of two Royalist Tory sheriffs. When a Tory mayor was elected, the King had control of the three chief magistrates of the London borough, bringing an end to pro-Protestant juries. See, Schwartz, supra note 15, at 18.

n27 See, e.g., In Re Russo, 53 F.R.D. 563, 568 (C.D. Cal. 1971).

N28 See generally L. CLARK, supra note 15, at 17.

n29 Id.

n30 Id.

n31 Id.

n32 One famous case often referred to as an example of the grand jury as a protector of individual rights against the power of the oppressive government is the prosecution of New York publisher John Peter Zenger, for criminal libel. Two grand juries refused to indict Zenger for his publication’s criticism of the colonial governor. The refusal of these grand juries to indict did not prevent the colonial government from instituting criminal proceedings against Zenger. Zenger was charged by information for a misdemeanor in printing, and was forced to stand trial. The petit jury refused to follow the law and acquitted Zenger, establishing the first well-known case of jury nullification in America. It was the courage of the petit jurors that served Zenger, not the grand jury. See generally V. BURANELLI, THE TRIAL OF PETER ZENGER (1957).

n33 L. CLARK, supra note 15, at 17.

n34 Id.

n35 Alien and Sedition Law of 1798, ch. 74, § 10-4, 1 Stat. 596; See J. MILLER, CRISIS IN FREEDOM: THE ALIEN AND SEDITION ACTS 15 (1951); Schwartz, supra note 15, at 721.

n36 See Schwartz, supra note 15, at 721-32. See generally E. LAWSON, THE REIGN OF WITCHES: THE STRUGGLE AGAINST THE ALIEN AND SEDITION LAWS, 1798-1800 (1952).

n37 See D. ROBERTSON, REPORTS OF THE TRIALS OF COLONEL AARON BURR FOR TREASON 305-06 (1808); J. TRACY, NINE FAMOUS TRIALS 21 (1960); Schwartz, supra note 15, at 732-38.

n38 Much of the information concerning the use of the grand jury in the civil war period is taken from R. YOUNGER, THE PEOPLES PANEL, THE GRAND JURY IN THE UNITED STATES, 1634-1941 85-133 (1963), and the citations of authority contained therein.

n39 R. YOUNGER, supra note 38, at 85-88.

n40 Id. at 92-95. In 1818, Jacob Guber, a Methodist Minister, denounced slavery at a meeting in Maryland and was indicted by a grand jury for attempting to incite slaves to rebellion. C. EATON, FREEDOM OF THOUGHT IN THE OLD SOUTH 131 (1940). In 1835, grand jurors of Tuscaloosa, Alabama indicted Robert G. Williams, the editor of the New York “Emancipator,” on charges of sending his paper into Alabama in violation of a law that prohibited the circulation of seditious writings in the state. J. SELLERS, SLAVERY IN ALABAMA 366 (1950). A Kentucky grand jury accused John B. Mahon, one of the founders of the Ohio Anti-Slavery Society, of illegal abolitionist activities. Id.

n41 R. YOUNGER, supra note 38 at 93-94. In 1835, President Andrew Jackson recommended that Congress make it a crime to send abolitionist literature through the mails. Strong mass resistance, in which former President John Quincy Adams was quite active, prevented Congress from taking this drastic action. In the South, however, it was up to the postmasters to choose what printed matter they would deliver. See W. FOSTER, THE NEGRO PEOPLE IN AMERICAN HISTORY 123 (1954). In 1841, the Maryland legislature ordered grand juries to call before them at every term of court all postmasters and deputy postmasters in their jurisdiction, to testify regarding inflammatory literature received by free colored persons. See J. BRACKETT, THE NEGRO IN MARYLAND 225 (1889).

n42 R. YOUNGER, supra note 38, at 94 n.25. Severe penalties accompanied a conviction of helping fugitive slaves escape. Captain William Bayliss, an abolitionist shipmaster, was indicted by a Virginia grand jury for violating the Fugitive Slave Act. He was convicted, his ship was auctioned off, and he was sentenced to forty years in jail. See W. FOSTER, supra note 41, at 131.

Southern slaveholders posted a $ 40,000 dead or alive, for the courageous Harriet Tubman, called “Moses” for her work escorting slaves to freedom in the “underground railroad.” Id.

n43 See generally R. YOUNGER, supra note 38. This is certainly not to imply that the rights of free negroes and abolitionists were not violated and that crimes against their persons and property were not taking place in the North. The Abolitionist Press reported 209 violent mob attacks in the North between 1830-1849. These violent assaults were not the uncontrolled outpouring of blind racism, as often suggested. Rather, mobs led by leaders of the white community were designed to repress advances in black education and employment, to repress all black organizations, and to destroy the local abolitionist movement. See J. SAKAI, THE MYTHOLOGY OF THE WHITE PROLETARIAT: A SHORT COURSE IN UNDERSTANDING BABYLON 29 (1983). Unfortunately, the grand jury did nothing to stop this mass wave of terror.

n44 Unlike the law of 1850 (9 Stat. 462-65 (1850)), the Fugitive Slave Act of 1793, (1 Stat. 302-05 (1793)), made no provision for criminal proceedings against those who assisted runaways.

n45 See Schwartz, supra note 15, at 747-51 (discussing four major incidents in Boston involving abolitionists aiding runaway blacks). See also W. FOSTER, supra note 41, at 167-71.

n46 H. BUCKMASTER, LET MY PEOPLE GO 230-36 (1941).

n47 R. YOUNGER, supra note 38, at 103-05; Schwartz, supra note 15, at 744-46.

n48 R. YOUNGER, supra note 38, at 103-05.

n49 See Id. at 109-13. Younger points out that internment was an active policy of the North during the Civil War: The Lincoln administration early adopted, and continued to practice, a policy of arbitrarily arresting persons who voiced opposition to the war or appeared to be politically dangerous. Such a policy enabled the administration to hold dangerous persons indefinitely without proferring charges or bringing them to trial. Id. at 110.

n50 In May 1862, Benjamin H. Smith, the federal attorney in western Virginia, asked federal courts at Clarksburg and Wheeling not to summon grand juries for the spring term, because he feared they would return too many treason indictments. J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 89 (1963).

n51 R. YOUNGER, supra note 38, at 115.

n52 Id.

n53 See generally P. LAMSON, THE GLORIOUS FAILURE (1973); W. DuBOIS, BLACK RECONSTRUCTION IN AMERICA, 1860-1880 (1972); K. STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877 (1965); R. YOUNGER, supra note 38, at 118-133.

n54 R. YOUNGER, supra note 38, at 127.

n55 R. YOUNGER, supra note 38, at 128-29. The Klan, formed in 1865 in Pulaski, Tennessee, with the support of white landowners, spread throughout the South and became the military arm of the white southern efforts to overthrow Reconstruction. The Klan carried out murders, lynchings, rapes, and other acts of terror throughout the South. During the 1868 elections in Louisiana, 2,000 blacks were killed or wounded, and many more were forced to flee the state. J. SAKAI, supra note 43, at 41. See also K. STAMPP, supra note 53, at 199-205.

Despite these rampant acts of terrorism, Southern state grand juries refused to indict. Unbelievably, “[j]urors in Blount County, Alabama, found indictments against a large number of persons for opposing the Klan. In South Carolina, a courtroom audience broke into cheers when the inquest refused to charge Klan members with intimidating colored persons.” R. YOUNGER, supra note 38, at 129.

n56 The Ku Klux Klan Act of 1870, 17 Stat. 140 (1870), extended federal jurisdiction over all elections and provided that the use of force or intimidation to prevent citizens from voting was to be punished by fine or imprisonment. The following year, a Federal Election Act, 16 Stat. 433 (1871), and another Ku Klux Klan Act 17 Stat. 13 (1871), were passed. The Acts provided for increased penalties on persons who “shall conspire together, or go in disguise . . . for the purpose . . . of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the law.”

A federal inquest at Raleigh, North Carolina investigated a Klan raid upon the town of Rutherford and indicted over 750 persons for taking part. In October 1871, President Grant proclaimed that “unlawful combinations and conspiracies existed in nine South Carolina counties.” Accordingly, federal troops moved in and arrested fifteen hundred persons. A federal grand jury composed of six whites and twenty-one blacks indicted over seven hundred and fifty persons for violating the Federal Election Act and the Ku Klux Klan Act of 1871. R. YOUNGER, supra note 38, at 130.

n57 R. YOUNGER, supra note 38, at 131.

n58 W. FOSTER, supra note 41, at 336.

n59 Id.

n60 See, e.g., Powell v. Alabama, 287 U.S. 45 (1932) (involving Scottsboro Boys case); See also, MENDOLSOHN, THE MARTYRS (1966); J. FRANKLIN, FROM SLAVERY TO FREEDOM: A HISTORY OF AMERICAN NEGROES (1956); W. FOSTER, supra note 41, at 482-83, 529; R.W. LOGAN, THE BETRAYAL OF THE NEGRO (1954).

n61 See generallu R. BOYER & H. MORAIS, LABOR’S UNTOLD STORY 92-97 (1955).

n62 Id.

n63 D. LUM, THE GREAT TRIAL OF THE CHICAGO ANARCHISTS 48 (1886).

n64 H. BARNARD, EAGLE FORGOTTEN 109 (1938) (if the anarchists through some turn of events had been acquitted they would have been hanged by a mob). Other authors noted that “[a] Vigilante Committee will take the law into their own hands, and restore social order, by suspending civilization for three days.” R. BOYER & H. MORAIS, supra note 61, at 97.

n65 R. BOYER & H. MORAIS, supra note 62, at 97; R. YOUNGER, supra note 38, at 215.

n66 R. BOYER & H. MORAIS, supra note 62, at 123-31; R. YOUNGER, supra note 38, at 216-17.

n67 R. Younger, supra note 38, at 216-17.

n68 The grand jury also victimized Mexican workers in the Southwest, as they fought for better working conditions and to keep their land from the designs of the white ranchers. In New Mexico in 1890, the grand jury investigating a clandestine Mexican group, “Las Gorras Blancas” (White Caps), which was accused of attacking white ranchers who had stolen Mexican lands, indicted Mexican labor leaders. R ACUNA, OCCUPIED AMERICA, THE CHICANO STRUGGLE TOWARD LIBERATION 73-77 (1972).

Also, Mexican revolutionary Syndicalist leader Ricardo Flores Magon of the Partido Liberal Mexicano (PLM), which had led thousands of miners in strikes on both sides of the border and published its ideas in a magazine called “Regeneracion,” was indicted several times for attacking the capitalist system through his writings, and for opposing Mexican workers’ involvement in World War I. Magon was finally imprisoned in Ft. Leavenworth, where he was denied medical care and died. J. GOMEZ-QUINONES, SEMBRADORES, RICARDO FLORES MAGON Y EL PARTIDO LIBERAL MEXICANO: A EULOGY AND CRITIQUE 49-64 (1973). See also R.F. MAGON, LAND & LIBERTY (1977).

n69 R. BOYER & H. MORAIS, supra note 61, at 195-202.

n70 Id.; see also Haywood v. United States, 268 F. 795 (7th Cir. 1920); W. HAYWOOD, BILL HAYWOOD’S BOOK: THE AUTOBIOGRAPHY OF WILLIAM D. HAYWOOD 310-23 and Appendix III (1929).

n71 One hundred and forty-six IWW members were indicted in Sacramento, 38 in Wichita, 7 in Tacoma, 27 in Omaha, and 28 in Spokane. Like those indicted in Chicago, virtually all were found guilty for opposing the war, and were given long prison sentences. See R. BOYER & H. MORAIS, supra note 6, at 198; W. HAYWOOD, supra note 70, at 310-26 and Appendices I and II.

On June 21, 1917 a federal grand jury indicted anarchist leaders Emma Goldman and Alexander Berkman on charges of “conspiracy to induce persons not to [register for the draft],” based upon speeches they had made against the war. R. DRINNON, REBEL IN PRACTICE 188-89 (1961). At her trial, Goldman, acting as her own lawyer, defended the right of those to oppose the government by force: “[A]n act of political violence at the bottom is the culminating result of organized violence at the top. . . . I refuse to cast the stone at the ‘political criminal’. . . . I take his place with him, because he has been driven to revolt, because his life-breath has been choked up.” Id. at 193. Scores of Socialists were also indicted and imprisoned, including the entire national executive comittee of the Socialist Party. See R. BOYER & H. MORAIS, supra note 62, at 198.

n72 R. BOYER & H. MORAIS, supra note 6, at 200-01. Debs was charged with ten counts of violation of the Sedition Act for a speech he made in Nimisilla Park, which stated in part: “The master class has always declared war; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and all to lose — especially their lives . . . .” Id. at 200. Debs also defended himself, calling no witnesses but contending that he had the inalienable right under the first amendment to express his thoughts about his country’s policies. Nevertheless, he was convicted and before sentencing told the Court:

Your honor, I ask no mercy, I plead for no immunity. I realize that finally the right must prevail. I never more fully comprehended than now the great struggle between the powers of greed on one hand and upon the other the rising hosts of freedom. I can see the dawn of a better day of humanity. The people are awakening. In due course of time they will come into their own.

Id. at 201. The Court unaffected, sentenced the elderly Debs to ten years in federal prison. When the Supreme Court upheld the conviction and sentence, finding that free speech was not involved, Debs issued the following statement:

The decision is perfectly consistent with the character of the Supreme Court as a ruling class tribunal. It could not have been otherwise. So far as I am personally concerned, the decision is of small consequence. . . .

Great issues are not decided by courts but by the people. I have no concern with what the coterie of begowned corporation lawyers in Washington may decide in my case. The court of final resort is the people, and that court will be heard from in due time. . . .

Id. at 202.

n73 W. FOSTER, supra note 41, at 442-51. At least 38 black people died at the hands of lynching parties in 1917 and another 58 in the following year. In East St. Louis, Illinois, at least 40 black people died in a riot that grew out of the employment of blacks in a factory that held government contracts. See J. FRANKLIN, FROM SLAVERY TO FREEDOM 341 (1980). Although many black newspapers supported the U.S. war effort, “The Messenger,” a newspaper published in New York by A. Philip Randolph and Chandler Owens, published an article “Pro-Germanism Among Negroes.” For publishing this article, the editors were indicted by a federal grand jury for sedition, and imprisoned for two and one-half years. Id. at 342. Within a few months after the end of World War I (a war in which black soldiers had fought and died to make America safe for democracy), there were race riots in two dozen cities, rampant lynchings, and the resurrection of the Ku Klux Klan. See D. LEWIS, WHEN HARLEM WAS IN VOGUE 23 (1979).

In one instance, in October of 1919 in Helena, Arkansas, a local grand jury composed of a special “Committee of Seven,” including the sheriff, deputy sheriff, the county judge, the mayor, and three businessmen, indicted 73 black members of a newly formed organization — The Progressive Farmers and Household Union of America — who were seeking to better their economic status. Twelve were sentenced to death, and the rest (excluding one acquittal) were rapidly convicted and sentenced to terms ranging from 5-21 years. Id. at 22.

n74 See sources cited at supra note 60.

n75 In 1942, for example, Elijah Muhammad, a Black Muslim leader, was indicted for sedition and inciting followers to resist the draft, and received a five year sentence on the latter charge. In addition, over 100 of his followers were indicted for refusing to serve in the U.S. military. See E.U. ESSIEN-UDOM, BLACK NATIONALISM — A SEARCH FOR AN IDENTITY IN AMERICA 67 (1962). See also I. OBADALE, FREE THE LAND (1984), documenting the criminal prosecutions in the 1970′s against the leadership of the Republic of New Africa, a Black Nationalist group seeking to establish an independent Black Nation in five states of the Deep South; H. Newton, To Die for the People (1976); M. KEMPTON, BRIAR PATCH (1972)(documenting the prosecution of the Black Panther Party (Panther 21)).

n76 See NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT, REPORT ON PROSECUTION 124-26 (1931); Morse, A Survey of the Grand Jury System, 10 OR. L. REV. 101, 153-54 (1931) (of 6,453 cases submitted to state grand juries, the grand jurors deviated from the prosecutor’s recomendation in only 5.39% of the cases). See also the testimony of Assistant Attorney General Benjamin Civillette, stating that in 1976, 23,000 federal indictments were returned and 123 no-true bills. Hearings on H.R. 94 Before the Subcommittee on Immigration, Citizenship, and International Law of House Committee on the Judiciary, 95th Cong., 1st Sess. 738 (1977).

Further, Melvin P. Antell, Judge of the Essex County District Court, Newark, N.J. stated well the relationship between the grand jury and the prosecutor:

Cases presented to a grand jury are usually introduced by the prosecutor’s opening statement. He will say what crime is charged, what additional or alternative charges may be considered, define the indicated crimes, and then outline the facts upon which the proceedings are based. Thereafter witnesses are called to substantiate the charges.

Though free to take part in the interrogation, the grand jurors must place enormous trust in the prosecutor’s guidance. It is he, after all, who tells them what the charge is, who selects the facts for them to hear, who shapes the tone and feel of the entire case. It is the prosecutor alone who has the technical training to understand the legal principles upon which the prosecution rests, where individual liberty begins and ends, the evidential value of available facts and the extent to which notice may be taken of proposed evidence.

In short, the only person who has a clear idea of what is happening in the grand jury room is the public official whom these twenty-three novices are expected to check. So that even if a grand jury were disposed to assert its historic independence in the interest of an individual’s liberty, it must, paradoxically, look to the very person whose misconduct they are supposed to guard against for guidance as to when he is acting oppressively.

Actually, the concern of protecting the individual from wrongful prosecution is one about which grand juries in general show little interest. It is edifying indeed to a new prosecutor to learn how willing people are to let trouble descend upon their fellows. In positions of authority, many are prepossessed by fancied obligations to “back up” the police, to “stop mollycoddling,” to “set examples.” Attitudes of understanding, of patient inquiry, of skeptical deliberation, so needed in the service of justice, recede in the presence of duly constituted officials and are replaced by a passive acceptance of almost anything which seems to bear the sovereign’s seal of approval.

Thus, when a case is brought into the grand jury room the prevailing feeling is that the prosecutor wouldn’t bring it there if he didn’t think he could get a conviction. Accordingly, it follows in nearly all cases that unless the prosecutor does something forceful about it indictments are normally returned by the grand jury.

Antell, The Modern Grand Jury: Benighted Supergovernment, 51 A.B.A.J. 153, 154-55 (1965). See also statement of federal Judge William Campbell: “This great institution of the past has long ceased to be the guardian of the people for which purpose it was created at Runnymede. . . . Any experienced prosecutor will admit that he can indict anybody at any time for almost anything before any grand jury.” Campbell, Delays in Criminal Cases, 55 F.R.D. 229, 253 (1972).

n77 See R. GOLDSTEIN, POLITICAL REPRESSION IN MODERN AMERICA, FROM 1870 TO THE PRESENT 299-348 (1978).

n78 Id. at 296.

n79 See generally, V. NAVASKY, NAMING NAMES (1980).

n80 R. GOLDSTEIN, supra note 77, at 312-13.

n81 Id. at 313.

n82 Id. at 323. The conditions provided in the Act for an “internal security emergency” were three: (1) an invasion of the U.S. or its possessions; (2) a declaration of war by Congress; or (3) an insurrection within the U.S. in aid of a “foreign enemy.” The statute also authorized the preparation of two general warrants, a “Master Warrant of Arrest” and a “Master Search Warrant.” The arrest warrant allowed for “the arrest of the persons on the attached list . . . to be detained until further order.” It could be executed at any hour of the day or night. Id.

The “attached list” or the “security index” was originated by J. Edger Hoover in 1939 and was an intelligence index of people who could pose a threat to internal security. The list contained two classes of people: those to be apprehended in an emergency and those to be watched. The list which came to be called the Security Index, contained the names of radicals with a potential for sabotage, as well as the leader and functionaries of left-wing organizations. At the time the 1950 Act was passed, the Security Index (SI) was said to have 11,930 names. By 1951, the SI included 15,390 names — 14,000 of them believed to be Communist Party members, and by the end of 1954 the SI contained 26,174 persons. Although the official SI ceased to function, the FBI maintained their own form of SI. In 1969 the designations of the index were prioritized under the Priority Apprehension Program and as Priority I, top level leaders of “subversive organizations and anarchist groups” were under periodic surveillance by the FBI. In 1971 the Congress repealed the Emergency Detention Act of 1950. However, then Attorney General Mitchell authorized the FBI to maintain its Security Index, which was now formally called the Administrative Index (ADEX) containing three main categories, including the leaders of revolutionary, radical, and black extremists groups and the rank and file members of these groups. Category III illustrated the detention-purpose of the Index when it included, “any non-affiliated revolutionary whose ideology makes him likely to seize upon the opportunity presented by a national emergency to commit acts of espionage and sabotage.” C. ROSS & K. LAWRENCE, J. EDGAR HOOVER’S DETENTION PLAN: THE POLITICS OF REPRESSION IN THE UNITED STATES, 1939-1976, AMERICAN FRIENDS SERVICE COMMITTEE’S PROGRAM ON GOVERNMENT SURVEILLANCE AND CITIZENS’ RIGHTS 14-15 (1978). In 1976, the FBI told the Senate Select Committee on Intelligence (Church Committee) that its ADEX files were no longer operational. Id

n83 Perhaps unsurprisingly, the designated camp at Tull Lake, California, had been one of the major camps used to house Japanese-Americans during World War II. See R. GOLDSTEIN, supra note 77, at 322-24. No article which in any way touches on the question of political internment in the U.S. can fail to mention the fascist-like detention of Japanese-Americans in camps by executive order during World War II and the ruling of the Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944), upholding the government’s exercise of “emergency” internment power. See P. IRONS, JUSTICE AT WAR (1982).

n84 Beginning in the spring of 1947, a federal grand jury in New York — the same one that would indict the Communist leaders in 1948 — subpoenaed scores of past and present government employees accused by government informers of belonging to the Communist Party or Communist espionage rings. The grand jury did not indict a single one, many of whom had taken the fifth amendment, but rather passed the issue to the HUAC. D. CAUTE, THE GREAT FEAR 56 (1978).

n85 R. GOLDSTEIN, supra note 77, at 326-29.

n86 D. CAUTE, supra note 84, at 56.

n87 See generally, Rogge, Compelling the Testimony of Political Deviants, 55 MICH. L. REV. 163 (1956).

n88 Immunity Act of 1954, ch. 769, § 1, 68 Stat. 745 (1954), repealed by Pub. L. No. 91-452, Title II, § 228(a), 84 Stat. 830 (15 October 1970). The Act applied to the offenses of treason, sabotage, espionage, and sedition. The United States Supreme Court in Ullman v. United States, 356 U.S. 422 (1956), upheld this abrogation of the historic right of silence directed against political thought and action despite a vigorous dissent by Justice Douglas. See also Rogge, supra note 87. See infra notes 145-48 and accompanying text.

n89 “Transactional immunity” affords immunity to the witness from prosecution for the offense to which his compelled testimony relates. BLACKS LAW DICTIONARY 677 (5th ed. 1979). Compare with “use immunity,” infra note 102.

n90 For a list of statutes that include compulsory testimony/immunity provisions for business enterprises, see Shapiro v. United States, 335 U.S. 1, 6-7 n.4 (1948).

n91 Rogge, supra note 87, at 170.

n92 See Note, The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope, 72 YALE L.J. 1568, 1608 (1963).

n93 See R. GOLDSTEIN, supra note 77, at 493; Donner & Cerruti, The Grand Jury Network: How the Nixon Administration Has Secretly Perverted a Traditional Safeguard of Individual Rights, NATION, January 3, 1972, at 5.; Comment, Federal Grand Jury Investigation of Political Dissidents, 7 HARV. C.R.-C.L. L. REV. 432 (1972).

n94 See, e.g., In Re Evans, 452 F.2d 1239 (D.C. Cir. 1971) (grand jury investigating May Day anti-war demonstrations); Bacon v. United States, 446 F.2d 667 (9th Cir. 1971).

n95 Beverly v. United States, 468 F.2d 732 (5th Cir. 1973). See also Recent Developments, Grand Juries May Inquire Into Political Beliefs Only in Narrow Circumstances, 73 COLUM. L. REV. 867, 879 n.78 (1973).

n96 In Re Grand Jury Proceedings (Egan), 450 F.2d 199 (3rd Cir. 1971), aff’d sub. nom., Gelbard v. United States, 408 U.S. 41 (1972). These cases arose out of a grand jury investigation into an alleged plot by Catholic and other religious activists to kidnap Henry Kissinger and to sabotage Washington, D.C.’s heating system. Subsequent to the indictment of six co-conspirators, the grand jury subpoenaed 34 people. Two who refused to testify — Jacques Egan and Pat Chanel — raised, inter alia, that the questions propounded to them were based upon illegal electronic surveillance. The government claimed a grand jury witness had no standing to raise this claim. The government’s contention was rejected by the Third Circuit and ultimately by the Supreme Court. Id. Nevertheless, four witnesses were cited for civil contempt and four for criminal contempt.

n97 The Weathermen, a split off from the Students for a Democratic Society, pursued militant and armed actions in opposition to Vietnam war. A Tucson grand jury conducted an alleged investigation into the illegal purchase of dynamite, but focused primarily on the radical community in Venice, California and the political whereabouts of fugitives. Five political activists were cited for contempt and jailed. United States v. Weinberg, 439 F.2d 743 (9th Cir. 1971). The five remained incarcerated until the end of the grand jury and as they were being released, were subpoenaed again and this time cooperated. See Donner & Cerriti, supra note 93, at 6-7; Comment, supra note 93, at 433. See also In Re Kinoy, 326 F. Supp. 400 (S.D.N.Y. 1970) (grand jury subpoenaed well respected radical lawyer Arthur Kinoy in an effort to locate his daughter an alleged fugitive).

n98 In re Vericker, 446 F.2d 244 (2nd Cir. 1971) (Brooklyn grand jury investigating theft of records and destruction of draft files); In re Verplank, 329 F. Supp. 433 (C.D. Cal. 1971) (grand jury investigating anti-draft movement).

n99 United States v. Doe (Popkin), 460 F.2d 328 (1st Cir. 1972) (rejected the contention that the “scholars privilege” under the first amendment entitled defendant to refuse to answer questions about the sources of his scholarly articles); United States v. Doe (Ellsberg), 455 F.2d 1270 (1st Cir. 1972); In re Russo, 448 F.2d 369 (9th Cir. 1971).

n100 Bursey v. U.S., 466 F.2d 1059 (9th Cir. 1972) (grand jury investigation into Black Panther Party); In re Grand Jury Subpoenas (Grusse), 515 F.2d 157 (1975), 402 F. Supp. 1232 (D. Conn. 1975) (grand jury investigation into women’s communities in New Haven, Connecticut and in search of radical fugitives).

n101 18 U.S.C. § § 6001-6005 (1982). The Internal Security Division information gathering was apparently not restricted to individual grand juries because the division also supervised the Interdivisional Informant Unit (IDIU), which in essence consisted of a computer that acted as the prime repository for domestic political intelligence. See Recent Developments, supra note 95, at 828 n.71.

n102 “Use immunity prohibits witness’ compelled testimony and its fruits from being used in any manner in connection with criminal prosecution of the witness.” BLACK’S LAW DICTIONARY 677 (5th ed. 1979). Cf. supra note 89 (transactional immunity).

n103 A sample question asked by the head of the Internal Securities Division, Guy Goodwin, to one of five witnesses subpoenaed before a grand jury in Tucson allegedly investigating the transportation of dynamite, illustrates the true intent of these grand juries:

Tell the grand jury every place you went after you returned to your apartment from Cuba, every city you visited, with whom and by what means of transportation you traveled and who you visited at all of the places you went during the times of your travels after you left your apartment in Ann Arbor, Michigan, in May of 1970.

I want you to describe for the grand jury every occasion during the year 1970, when you had been in contact with, attended meetings which were conducted by, or attended by, or been any place when any individual spoke whom you knew to be associated with or affiliated with Students for a Democratic Society, the Weatherman, the Communist Party or any other organization advocating revolutionary overthrow of the United States, describing for the grand jury when these incidents occurred, where they occurred, who was present and what was said by all persons there and what you did at the time that you were in these meetings, groups, associations or conversations.

n104 Fine, supra note 90, at 433-34 n.5; Recent Developments, supra note 92, at 870 n.20 and 879 at n.78. Another federal grand jury, convened in San Francisco, subpoenaed 16 people from points as distant as Minneapolis and Puerto Rico to ask about their knowledge of the whereabouts of anti-war fugitives. Id. at 878 n.73.

n105 In re Tierney, 465 F.2d 806 (5th Cir. 1972).

n106 Washington Post, March 14, 1972, at 2, col. 3.

n107 The task force developed a grand jury manual that is now a basic resource for all attorneys representing witnesses before grand juries. C. BOARDMAN, REPRESENTATION OF WITNESSES BEFORE GRAND JURIES (1982).

n108 For a list of organizations that formed the national coalition, see Hixson, Bringing Down the Curtain in the Absurd Drama of Entrances and Exits — Witness Representation in the Grand Jury Room, 15 AM. CRIM. L. REV. 307 n.1 (1977-78).

n109 See, Movimiento de Liberacion Nacional, Collaboration and Non-Collaboration: The Federal Grand Jury As An Instrument of Political Repression, in REPRESSION AND RESISTANCE (Rebeldia Publications, 1983); Comite Unitario Contra La Represion, Firm in Non-Collaboration, in REPRESSION AND RESISTANCE (Rebeldia Publications, 1983).

n110 Among the people that went to jail were Ellen Grusse and Maria Turgeen. See In re Grand Jury, supra note 100. Many of those subpoenaed to the Tuscon Grand Jury were also imprisoned. See United States v. Weinberg, supra note 97. See also infra note 120 regarding the imprisonment of Ruerto Rican activists.

n111 Conversation with Juan Antonio Corretjer, in Guynabo, Puerto Rico (April 1980). For an excellent historical account of the nationalist period, see generally LOPEZ, PUERTO RICAN NATIONALISM (1977).

n112 A year later, the same grand jury indicted Corretjer and six other leaders of the Nationalist Party, including its leader, Harvard educated lawyer Pedro Albizu Compos, for seditious conspiracy to overthrow the U.S. Government in Puerto Rico. They were tried, convicted, and sentenced to ten years in prison. See Albizu v. United States, 88 F.2d 138 (1st Cir. 1937).

n113 See supra note 109.

n114 See United States v. Torres, 751 F.2d 875, 876-77 (7th Cir. 1984).

n115 The National Commission on Hispanic Affairs had funded community programs including daycare centers, a clinic, and a local social actions organization. As the direct result of the government’s grand jury investigation, the church disbanded the Hispanic desk and stopped funding all programs. Conversation with Maria Cueto (July 1982).

n116 Two federal fugitives, Carlos Torres and Oscar Lopez, whom the FBI suspected were associated with the FALN, had been Commission members, and the FBI wanted to discover their whereabouts. In re Cueto, 443 F. Supp. 857 (S.D.N.Y. 1978).

n117 The subpoena demanded any and all records, documents, reports, notes, lists, memoranda, statements, books, papers and things in your care, custody, possession or control which relate to, concern, or reflect, for the years 1970 up to and including 1977; (1) the membership of the National Commission for Hispanic Affairs (the “Commission”); (2) financial statements of the Commission, including, but not limited to, statements showing expenses, salaries, income gifts and sources thereof; (3) names and addresses of all personnel employed by the Commission; (4) a list of all meetings, conferences, and convocations sponsored in whole or in part by the Commission, and (5) names and addresses of all persons attending said meetings, conferences, and convocations.

n118 In re Cueto, 443 F.Supp. 857 (S.D.N.Y. 1978).

n119 In re Rosado, 441 F. Supp. 1081 (S.D.N.Y. 1977).

n120 In re Special February 1975 Grand Jury (Lopez, Caldero & Archuleta), 565 F.2d 407 (7th Cir. 1977). Two of those jailed, Ricardo Romero from Colorado and Pedro Archuleta from New Mexico, were political organizers and also former members of the Hispanic Affairs Commission. Archuleta, while confined for civil contempt in Chicago, was subpoenaed to the New York FALN grand jury investigation. See In re Archuleta, 432 F. Supp. 583 (S.D.N.Y. 1977), 561 F.2d 1059 (2nd Cir. 1977).

n121 In re Cueto, 443 F. Supp. 857, 860 (S.D.N.Y. 1978).

n122 Id.

n123 Following their release from prison in 1978, Maria Cueto, Ricardo Romero, Julio Rosado, Pedro Archuletta, and several others from Chicago who had been imprisoned, formed an organization to further their political and social goals, including independence for Puerto Rico, and to oppose use of the grand jury as a tool of repression — the Movimiento de Liberacion Nacional (MLN). Each returned to their respective communities, Maria Cueto relocating in Arizona, to rejoin their families and resume their lives. Conversation with Maria Cueto and other founders of the MLN, Chicago, IL (March 1, 1979).

n124 THE WITNESS, Publication of Episcopal Church, 10-11, (January, 1982); Quash, Newsletter of the Grand Jury Project, Inc., Vol. 7 No. 1, 5 (Jan.-Feb. 1982).

n125 THE WITNESS, supra note 124, at 17-18 (Feb. 1982); id. at 9 (March 1982).

n126 Id. at 20-21 (Nov. 1982).

n127 18 U.S.C. § 401(3) (1982). Bloom v. Illinois, 391 U.S. 194 (1968) allows for a jury trial if the potential sentence could be in excess of two years.

n128 Motion For Anonymous Jury, United States v. Rosado, No. 83-0025 (E.D.N.Y. 1983).

n129 The court allowed the jury to consider evidence of the defendants’ state of mind in refusing to cooperate with the grand jury to determine whether the contempt was of a serious or petty nature. Subsequently, the Second Circuit found this procedure improper. United States v. Rosado, 728 F.2d 89 (2d Cir. 1984). See THE WITNESS, supra note 124, at 19-20 (March 1983).

n130 THE WITNESS, supra note 124, at 18 (April 1983).

n131 THE WITNESS, supra note 124, at 3, 19 (July 1983). See also Sentencing Memorandum filed in United States v. Rosado, supra note 128. The Second Circuit upheld the conviction of the five on appeal, United States v. Rosado, 728 F.2d 89 (2d Cir. 1984).

n132 The two leaders were Carlos Noya, a leading member of the Puerto Rican Socialist league who had just served eighteen months in U.S. prison for refusing to cooperate with a grand jury in Puerto Rico, and Frederico Clintron Fiallo, a well-respected labor activist and chairperson of the “Comite Unitario Contra La Repression,” a unitarian committee against repression.

n133 Since 1976, eight Independence activists had been subpoenaed and jailed for refusing to collaborate with U.S. federal grand juries in Puerto Rico investigating the clandestine activity of the Independence movement on the island. See, e.g., In re Pantojas (II), 639 F.2d 822 (1st Cir. 1980); In re Pantojas, 628 F.2d 701 (1st Cir. 1980). In the Pantojas case, Carlos Rosario Pantojas, a supporter of Puerto Rican Independence was imprisoned in May 1981 on civil contempt for refusing to appear in a lineup as requested by the grand jury. After five months of imprisonment, two days prior to the expiration date of the grand jury and Rosario’s scheduled release, he was subpoenaed to a second grand jury, again requesting his appearance at a lineup. The Second Circuit in Pantojas II held that a grand jury’s right to call a witness is not defeated by the knowledge of the probability that a witness will refuse to comply. 639 F.2d at 824. See Berkan, The Federal Grand Jury: An Introduction to the Institution, Its Historical Role, Its Current Use and the Problems Faced by the Target Witness, 17 REVISTA JURIDICA DE LA UNIVERSIDAD INTERAMERICANA 103, 133 (1984). See also Quash, supra note 124, at 5.

In another case, labor leader Norberto Cintron Fiallo was arrested in January of 1981 on federal bank robbery and conspiracy charges. Bail was originally set at over a quarter million dollars. It was not until May of 1981 that Cintron was able to obtain a bail reduction and be released pending trial. In the interim, however, Cintron was called to the grand jury which was ostensibly investigating other crimes allegedly committed by independence supporters in Puerto Rico. The grand jury requested that Cintron provide a sample of his hair, which he refused to do. Less than one week after his release on bail, Cintron was found in contempt of the grand jury and jailed. It should be noted that while in jail, Cintron had regular hair cuts, and it is therefore reasonable to assume that the government already had possession of the evidence sought.

Cintron was acquitted of the bank robbery charge in July of 1981, but he remained in jail for contempt of the grand jury. He was re-subpoenaed in October when the original grand jury term expired. The request was again only for a hair sample. Cintron stayed in jail until the statutory eighteen month term was completed. Conversation with attorney for Norberto Cintron (March 1983).

Three other Independence activists, Ricardo Montes, Raymond Soto, and Alberto De Jesus Berrios have all been imprisoned in the last several years for refusing to collaborate with the U.S. Government’s use of the federal grand jury to investigate the clandestine Independence movement. Conversation with Puerto Rican attorneys for subpoenaed witnesses (March 1983).

n134 See United States v. Cintron/Noya No. 83-152 (E.D.N.Y. 1983). Yet another supporter of Independence is awaiting trial. United States v. Miller/Baraldini (E.D.N.Y. 1984).

n135 Guerra v. Meese, 614 F. Supp. 1430 (D.D.C. 1985), appeal docketed, No. 85-5912 (D.C. Cir.).

n136 Quash, supra note 124, at 1.

n137 Comment, supra note 93, at 443.

n138 See, e.g., United States v. Dionisio, 410 U.S. 1, 17 (1972) (the grand jury (may not always) stand “as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutory.”); Wood v. Georgia, 370 U.S. 375, 390 (1962) (the grand jury serves “as a primary security to the innocent against hasty, malicious and oppressive prosecution . . . ser(ving) the invaluable function in our society of standing between the accusers and the accused.”); Hale v. Henkel, 201 U.S. 43, 59 (1906) (the grand jury “stands between the prosecutor and the accused”).

n139 See Barenblatt v. United States, 360 U.S. 109, 123-25 (1959) (language from case); Watkins v. United States, 354 U.S. 178 (1957) (language from case).

n140 Z. CHAFEE, THE BLESSINGS OF LIBERTY 190-209 (1956); REIF, The Grand Jury Witness and Compulsory Testimony Legislation, 10 AM. J. CRIM. L. 829, 843-45 (1972).

n141 See Z. CHAFEE. supra note 140.

n142 161 U.S. 591 (1896).

n143 161 U.S. at 631 (Field, J., dissenting).

n144 McCarthy v. Arndstein, 266 U.S. 34, 42 (1924); Heike v. United States, 227 U.S. 131, 142 (1913); Hall v. Henkel, 201 U.S. 43 (1906).

n145 350 U.S. 422 (1956).

n146 Id.

n147 350 U.S. at 445-46 (Douglas, J., dissenting).

n148 Id. at 454.

n149 18 U.S.C. § § 6002 et. seq. (1970).

n150 Kastigar v. U.S., 406 U.S. 441 (1972). In Kastigar, the Court held that immunity need not be any greater than protection from prosecution based on the use and derivative use of the witness’ testimony, but does not extend to transactional immunity. Id.

n151 250 U.S. 273 (1919).

n152 Id. at 281.

n153 Id. at 281-82.

n154 Id.

n155 See, e.g., NAACP v. Button, 371 U.S. 415, 433 (1963); Kovacs v. Cooper, 336 U.S. 77 (1949); Thomas v. Collins, 323 U.S. 516 (1945).

n156 Some Puerto Ricans who support independence for their country, decline to assert U.S. constitutional rights in relation to the grand jury. They believe that if, as citizens of a sovereign nation that was militarily invaded and occupied and which is now an illegal colony, they asserted the protection of the U.S. Constitution, they would be recognizing the legitimacy of the U.S. Government’s involvement in Puerto Rico.

n157 The Charter of the United Nations, a treaty ratified by the Senate and binding upon the United States’ courts, contains the right to self-determinations. 59 Stat. 1035 (1945) Art. 1 Section 2 and Art. 55. Article 56 of the Charter states that “[a]ll Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” Further, subsequent resolutions by the General Assembly and Security Council, opinions by the International Court of Justice, and international human rights covenants, establish a customary international legal right of self-determination. See generally A. CRISTESCU, THE RIGHT TO SELF-DETERMINATION: HISTORICAL AND CURRENT DEVELOPMENT ON THE BASIS OF UNITED NATION INSTRUMENTS U.N. DOC. E/CN.Y (1981); Petition For Dismissal or Removal of Criminal Charges and Other Relief Under International Law, United States v. Torres, No. 83-449 (N.D. Ill. 1983).

The United Nations, through its Special Committee on the Situation With Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries on Puerto Rico, 1983 [hereinafter "Special Commission"] has, since 1972, repeatedly found that Puerto Rico has the right to self-determination and independence and called upon the United States Government to immediately transfer all sovereign powers to the Puerto Rican people. The Special Commission has also stated, that the persecutions, harassments, and represssive measures to which organizations and persons struggling for independence have been continuously subjected constitute violations of the national right of the Puerto Rican people to self determination and independence.” See Resolution of Special Committee, A/AC 109/707 (4 August 1982); A/AC 109/677 (20 August 1981); A/AC 109/628 (26 August 1980); A/AC 109-589 (16 August 1979); A/AC 109/574 (13 September 1975). See also Petition for Dismissal, United States v. Torres, No. 83-449.

n158 The grand jury has asked many of the subpoenaed independence activists for physical examples, such as hair samples and fingerprints, and has also asked them to participate in a lineup. See, e.g., supra note 133. Although no fifth amendment privilege attaches to the request for this type of evidence, the right of self-determination should preclude an order compelling compliance with the request by a U.S. federal grand jury.

n159 Resolution of Special Committee on the Situation With Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries on Puerto Rico, 1983 (A/AC109/751) (24 August 1983).

n160 Federal courts in other contexts are called upon to decide whether a litigant’s claim which may involve criminal activity arises in a political context and therefore requires special prosecution. An example would be the political crime exception to extradition treaties. See, e.g., Quinn v. Robinson, No. C-82-6688, RPA (N.D. Cal. Oct. 3, 1983); In re Dessie Mackin, Nos. 81-1324, 81-3064 & 81-3070 (2nd Cir. Dec. 23, 1981).

n161 In Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972), prosecutors sought to question the staff of a Black Panther Party newspaper about the decision-making process and inner workings of the newspaper in connection with an alleged plot to kill the President. The court ruled that: “When governmental activity collides with First Amendment rights, the Government has the burden of establishing that its interests are legitimate and compelling and that the incidental infringement upon First Amendment rights is no greater than is essential to vindicate its subordinating interests.” Id. at 1083. Under Bursey, no witness may be compelled to answer questions implicating first amendment interests unless and until the government demonstrates (1) an “immediate, substantial and subordinaring” interest, (2) a substantial connection between the information sought from the witness and the interest asserted, and (3) the means of obtaining the information are tailored strictly to satisfy the legitimate governmental interests. Id. Although Bursey does not go far enough and probably is no longer good law, it is one of the few judicial pronouncements recognizing the importance of first amendment rights in the grand jury context.

n162 See supra note 102 and accompanying text.

n163 Brazenburg v. Hayes, 408 U.S. 665 (1972).

n164 410 U.S. 1, 12 (1973) (fifth amendment not violated by use of voice exemplars used for identification purposes, not for testimonial or communicative content of the utterances).

n165 Id. at 12.

n166 H.R. 1407 which seeks to reform some of the grand jury potential for abuse is pending. However, this proposed legislation does not address the political use of the grand jury as an internment power.

n167 See U.S. v. Minker, 350 U.S. 179, 191 (1956) in which Justice Black in a concurring opinion stated that “apparently Congress has hever even attempted to vest FBI agents with such private inquestorial power.” Id. at 191 (Black, J., concurring).

Despite its lack of authority, the FBI in many instances treats the subpoena power as its own. It has become increasingly common for FBI agents to use the threat of a grand jury subpoena to coerce individuals into waiving their right to silence. What happens typically is that an FBI agent will ask a person some questions; when the person initially refuses to answer, the agent will threaten that person with subpoena by a grand jury investigating the matter. The layman may be frightened by the prospect of a subpoena, the legal significance of which he does not understand, and faced with the threat, will talk to the FBI. See Comment, supra note 93, at 485-89. In some instances the FBI has taken blank subpoenas to be filled out at the discretion of the individual agents.

n168 See supra notes 3 & 4 and accompanying text.

n169 See supra notes 112-22.

n170 See affidavit of FBI agent RICHARD S. Hahn in connection with an ex parte application pursuant to Title III for electronic surveillance before Chief Judge Frank J. McGarr in relation to an investigation of Puerto Rican activists alleged to be members of the FALN. In this affidavit, Hahn affirms that, “Grand Jury investigation has not been particularly successful in this case. Both in Chicago and in New York, many knowledgeable witnesses and subjects have been subpoenaed. They have routinely served substantial contempt sentences in order to frustrate the grand jury’s work.” (Paragraph 164, January, 1983). United States v. Torres, No. 83-449 (N.D. Ill. 1983).