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The Improper Use of the Federal Grand
Jury: An Instrument for the Internment of Political Activists
Copyright (c) 1984 Northwestern School of Law
Criminal Law & Criminology
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.
[*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.
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
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."
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
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.
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
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
A. THE ORIGINS OF THE GRAND JURY
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
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.
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
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
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
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.
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
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
C. CIVIL WAR AND RECONSTRUCTION
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
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 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.
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
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.
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.
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
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.
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
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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.
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
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
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
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.
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
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.
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.
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
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
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
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.
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
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
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
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.
III. THE POLITICAL RIGHT TO SILENCE
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
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
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:
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
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.
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.
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:
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
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.
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
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
CONCLUSION: GRAND JURY REFORMS
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.
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.
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
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
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.
n1 In re
Groban, 352 U.S. 330, 352-53 (1957) (Black, J., dissenting).
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.
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).
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
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.
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.
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).
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).
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.
infra notes 108-33 and accompanying text.
infra note 139.
infra notes 27 and 135 and accompanying text.
infra notes 15-133 and accompanying text.
infra notes 22-26, and 37 and accompanying text.
infra notes 108-33 and accompanying text.
infra notes 134-57 and accompanying text.
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).
L. CLARK, supra note 15, at 8; Schwartz, supra note 15, at 703-09.
L. CLARK, supra note 15, at 8-9; Schwartz, supra note 15, at
n19 In 1215,
the Lateran Council abolished trial by ordeal. See H. FRANKEL & G.
NAFTALIS, supra note 15, at 9.
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.
Schwartz, supra note 15, at 710-21.
Schwartz, supra note 6, at 75; L. CLARK, supra note 15, at 10-12.
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.
e.g., In Re Russo, 53 F.R.D. 563, 568 (C.D. Cal.
generally L. CLARK, supra note 15, at 17.
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.
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.
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
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,
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.
YOUNGER, supra note 38, at 85-88.
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.
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
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,
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
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.
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.
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.
BUCKMASTER, LET MY PEOPLE GO 230-36 (1941).
YOUNGER, supra note 38, at 103-05; Schwartz, supra note 15, at
YOUNGER, supra note 38, at 103-05.
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).
YOUNGER, supra note 38, at 115.
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.
YOUNGER, supra note 38, at 127.
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.
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."
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.
YOUNGER, supra note 38, at 131.
FOSTER, supra note 41, at 336.
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).
generallu R. BOYER & H. MORAIS, LABOR'S UNTOLD STORY 92-97 (1955).
n63 D. LUM,
THE GREAT TRIAL OF THE CHICAGO ANARCHISTS 48 (1886).
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
n66 R. BOYER
& H. MORAIS, supra note 62, at 123-31; R. YOUNGER, supra note 38,
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).
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
n69 R. BOYER
& H. MORAIS, supra note 61, at 195-202.
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).
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,
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:
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. . . .
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.
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).
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.
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)).
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).
Melvin P. Antell, Judge of the Essex County District Court, Newark, N.J. stated
well the relationship between the grand jury and the prosecutor:
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.
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.
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.
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).
R. GOLDSTEIN, POLITICAL REPRESSION IN MODERN AMERICA, FROM 1870 TO THE PRESENT
Id. at 296.
generally, V. NAVASKY, NAMING NAMES (1980).
GOLDSTEIN, supra note 77, at 312-13.
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.
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.
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).
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).
GOLDSTEIN, supra note 77, at 326-29.
n86 D. CAUTE,
supra note 84, at 56.
generally, Rogge, Compelling the Testimony of Political Deviants,
55 MICH. L. REV. 163 (1956).
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
"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).
supra note 87, at 170.
Note, The Federal Witness Immunity Acts in Theory and Practice: Treading the
Constitutional Tightrope, 72 YALE L.J. 1568, 1608
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).
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).
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
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
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).
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).
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
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.
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
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:
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
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
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.
In re Tierney, 465 F.2d 806 (5th Cir. 1972).
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
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).
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
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).
supra note 109.
United States v. Torres, 751 F.2d 875, 876-77 (7th Cir.
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).
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).
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.
In re Cueto, 443 F.Supp. 857 (S.D.N.Y. 1978).
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).
In re Cueto, 443 F. Supp. 857, 860 (S.D.N.Y. 1978).
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).
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).
WITNESS, supra note 124, at 17-18 (Feb. 1982); id. at 9 (March
at 20-21 (Nov. 1982).
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
For Anonymous Jury, United States v. Rosado, No. 83-0025 (E.D.N.Y. 1983).
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).
WITNESS, supra note 124, at 18 (April 1983).
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.
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.
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.
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).
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).
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.
Guerra v. Meese, 614 F. Supp. 1430 (D.D.C. 1985), appeal docketed,
No. 85-5912 (D.C. Cir.).
supra note 124, at 1.
supra note 93, at 443.
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").
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
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).
Z. CHAFEE. supra note 140.
161 U.S. 591 (1896).
U.S. at 631 (Field, J., dissenting).
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.
350 U.S. 422 (1956).
U.S. at 445-46 (Douglas, J., dissenting).
Id. at 454.
U.S.C. � � 6002 et. seq. (1970).
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.
250 U.S. 273 (1919).
Id. at 281.
Id. at 281-82.
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
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.
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).
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.
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.
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).
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).
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.
supra note 102 and accompanying text.
Brazenburg v. Hayes, 408 U.S. 665 (1972).
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).
Id. at 12.
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.
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,
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.
supra notes 3 & 4 and accompanying text.
supra notes 112-22.
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).