Issue 54, February 2006
Grand Juries and the Political Silencing of Dissent
By William Budington
Imagine a courtroom in which the defense attorney is kept outside the room, the jury is selected by the prosecution, the defendants’ fifth amendment rights (including that against double jeopardy) are suspended, and the writ of habeas corpus is bypassed. Now imagine this same court having the power to detain indefinitely any individual who refuses to cooperate with these proceedings. One can imagine such a scenario only in the despotic regimes of the world, where the power of persecution outweighs the desire for liberty. “Surely, not in America!” one might respond, since these actions offend the supposed principles on which our country was founded. Yet grand juries are not the work of the enemies of the United States, but a political tool used by the US government – especially the executive branch – to silence dissent and to incriminate political movements.
The grand jury is generally seen as a body intended to protect citizens from being unduly implicated in a criminal proceeding. Ideally, its function should be to hear “the state’s evidence in private to ascertain if there is sufficient reason for a trial to be held.”1 This pre-judicial court would carry out its function in secret by summoning witnesses and distributing indictments where appropriate, in order to avoid the possibility of falsely incriminating suspects and disgracing their reputation.
Reality, however, is often far more frightening than fantasy. In fiscal year 2003, federal grand juries voted to indict 68,295 suspects2 out of 68,3453. In other words, only one of every 1,400 suspects was not indicted – a chilling figure, if one is to take the supposed mission of the grand jury seriously. Although troubling, this figure is also unsurprising. The prosecution in modern grand juries have a monopoly on the presentation of witnesses and evidence in court. In effect, the responsibility of the grand jury to weigh evidence before distributing indictments has transmogrified into a mere formality, superseded by political expediency of using the jury as a tactic of the state’s war on dissent.
Grand juries have a long history of being used by those in power against disenfranchised groups. They were inherited from the English system by American colonists. In the early years of the republic, it was used as a tool by the executive to smother political opponents. Throughout the Civil War and Reconstruction periods, southern states regularly used the grand jury as a tool to block abolitionist speakers and activists from agitating against slavery in the south. During the struggle for the eight-hour day, thousands of labor leaders and protesters were indicted and jailed for politically-motivated reasons. This repression continued through World War I and the post-war period, when activists such as Eugene V. Debs and Marcus Garvey were brought before the jury - Debs receiving a 10-year sentence and Garvey being deported to Jamaica.4
With the Cold War, the excess of the juries was given a new justification. At the same time, a new importance was placed on the subpoena power of the jury – the purpose of which was to gather evidence in making a case. In 1954, Congress passed a grant of transactional immunity, compelling those subpoenaed to divulge information about their political activities, or be held in contempt of the court and thus imprisoned.
The following decades marked an acceleration of the policies that had come to characterize the use of the jury. In the words of Michael Deutsch,
The blatant use of the grand jury for harassment of political activists and intelligence gathering reached its height under the Nixon Justice Department. Between 1970-1973, over one hundred grand juries were convened in 84 cities; they subpoenaed over 1,000 activists.5
Targets of grand jury repression ranged from leaders of the anti-Vietnam war movement to various members of the Puerto Rican independence and black liberation movements. In 1977, nine Hispanic activists were jailed for refusing to cooperate when they were subpoenaed to appear before the grand jury, based on a spurious connection to the Fuerzas Armadas de Liberacion Nacional (FALN), a Puerto Rican independence group which had claimed a series of bombings in the US. A number of activists from this movement had been subjected to the double jeopardy of grand juries – imprisoning them multiple times for refusing to testify in the same investigation - amounting to a punishment for simply being active. This tactic was used on activists the prosecutors knew from experience would never testify, activists that in fact after internment had encouraged others to refuse to testify.6
Thus, in response to the increasing crackdown on all forms of political dissent, a new defense tactic was born: that of complete non-cooperation. Many served long jail sentences for their silence, proving that the ties to their communities were stronger than the state’s will to break them. Of course, highly cohesive communities that shared similar experiences had an extra line of defense: solidarity and the infrastructure to resist intimidation together. 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.7
Non-cooperation has a number of distinct tactical advantages. First, it provides a wall of protection that prevents agencies of the state from gathering information, halting the investigation in its tracks. The second advantage is a result of the grant of transactional immunity. Transactional immunity means that any evidence a witness provides cannot be then used to incriminate the witness – a means of persuasion by the prosecution. However, the cunning of the grant comes from the fact that it does not protect the witness from the testimony of anyone else. This proves to be a double function: it both paves a more lucrative path to inside details, and pits members of a group against one another. Refusing to testify is not just the main line of defense, it is the only one.
Since the initiation of the Bush administration’s “War on Terror,” the grand jury has come into increasing use and severity. Activist communities – especially those advocating direct action - are under attack all across the United States. In 2004, for the first time since the Vietnam War, a university, in this case Drake, was ordered to supply records of anti-war conferences and activities on campus to a federal grand jury. In 2005, four grand juries were convened – three targeting supposed Animal Liberation Front (ALF) and Earth Liberation Front (ELF) cells, and one persecuting veterans of the Black Panther Party on alledged evidence that was collected through the infamous and controversial COINTELPRO program.
A persistent problem in these cases has been that of the ‘snitch’ – a witness who willingly cooperates with the jury in hopes of saving their own skin, and as a result implicates others in crimes that often carry sentences of many years. Another dangerous figure is the infiltrator – an agent of the state that embeds herself in the movement to defuse its operations or gather information. Numerous snitches and infiltrators have been discovered in recent grand juries, causing irreparable damage to the political movements in which they were involved. Both should be known, exposed, and excluded from our movements, especially given the recent efforts by the Bush administration to step up surveillance and infiltration levels, bypassing rulings requiring federal court approval.8
Aside from the obvious constitutional provisions, the grand jury violates, it is an affront to legitimate groups pursuing social change. Groups involved in direct action or other illegal activities should be vigilant against the aforementioned figures, and take the necessary precautions in preparation for supporting grand jury resistance. Additionally, those that have already been imprisoned for resisting grand juries need outside support, in the form of letters and literature. On February 11th, 2006, Jericho Boston in association with various other groups will hold a forum at Roxbury Community College (1234 Columbus Avenue) from 2-6pm entitled “Resisting Repression’,” addressing various ways in which state and grand jury repression can be stopped. A number of speakers who have faced direct grand jury intimidation will share their experiences and invite others to a dialogue discussing these issues. Below are a list of resources to lend support to grand jury and other political prisoners:
1. “Just Say NO to Grand Jury Attack on the Anti-War Movement,” A Statement from the National Office of Refuse & Resist! February 9, 2004, http://rwor.org/a/1230/rnrstatement.htm (accessed on January 20, 2006).
2. Sourcebook of criminal justice statistics Online, “Grand jury and grand juror utilization in U.S. District Courts,” Table 1.94, http://www.albany.edu/sourcebook/pdf/t194.pdf (accessed January 20, 2006).
3. Bureau of Justice Statistics, U.S. Department of Justice, Compendium of Federal Justice Statistics, 2003, “Basis for declination of prosecution by U.S. Attorneys,” Table 2.4, 30, http://www.ojp.usdoj.gov/bjs/pub/pdf/cfjs03.pdf (accessed January 20, 2005).
4. Michael E. Deutsch, Journal of Criminal Law & Criminology, Winter, 1984, “The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists,” pp. 3-10.
5. Ibid., p. 11.
6. Ibid., pp. 13-14.
7. Ibid., p. 20.
8. The Guardian, January 23, 2006, “Bush Calls Surveillance Legal, Necessary,” http://www.guardian.co.uk/uslatest/story/0,,-5565973,00.html (accessed on January 25th, 2006)
Other articles by William Budington.
Re: Stop Snitchin’!|
Posted by Freaky Squomme at -0-2--2006
You build the wall of resistance and I'll climb over it.