—Senator Edward M. Kennedy testifying before a House Judiciary Subcommittee, March 1992
Imagine a country where a prosecutor can subpoena you to a grand jury and ask you anything about your life and thoughts. There are no limits to the scope or breath of the inquiry, and the prosecutor can ask about your friends, for example, or your political affiliations, what you or your friends think of the president, Cuba, Malcolm X, Mumia Abu-Jamal, the Palestinian struggle, independence for Puerto Rico, Fact Timor, or any other subject. Even your sex life is not off limits.1 Imagine also that this entire proceeding is secret; only the prosecutors, the grand jurors, a stenographer, and you are present. Not even your attorney is permitted to accompany you. Imagine that after you are subpoenaed, the prosecutor also can subpoena your children, your mother and father, and all of your friends and ask them all about you.
Now, you might think that you had a right not to answer any of these harassing and abusive questions. You might think that you had a Fifth Amendment right not to incriminate yourself; after all, the Constitution does provide you with such a right. But no. You must answer all of the questions. The prosecutor need only promise not to use what he learns against you. What is learned can be used against others, including your friends. And you still can be indicted for the crime about which you testified. To indict, the prosecutor must use independent evidence, incriminating evidence that supposedly comes from an alternative source.
After being granted immunity, if you refuse to answer the questions, if you refuse to name names, if you refuse to discuss your or another’s political ideology, you go to jail. You go to jail until you talk. It makes no difference whether you have children or a job or are ill. You go to jail until you talk. You can go to jail for a very long time, sometimes for years.
You might think, “Well, I have nothing to worry about. I am not a criminal and I am not friends with criminals. This cannot happen to me.” But you would be wrong. All kinds of people can get caught up in grand jury dragnets. In fact, one of the illegitimate uses of a grand jury is to destroy political movements, intimidate activists, and jail political leadership.
Grand juries often are used as weapons to repress political movements that organize for social change. They were used against the labor movement in the 1900s, the Communists in the 1950s, antiwar activists, Irish nationalists, and Black Panthers in the 1960s and 1970s, and Puerto Rican Independentistas for the last seventy years. Thousands of activists have been subpoenaed and had their lives ruined and governments weakened.
Grand jury witch hunts similar to those of earlier decades are, at least for the time being, somewhat quiescent. However, this is more an indication of a weakened activist movement than of government forbearance in the use of this repressive tool. Unfortunately, this medieval instrument of repression remains in the government arsenal and will be employed when political activism threatens the status quo.
Recently, however, the use of the grand jury against President Bill Clinton and his friends and acquaintances fit the classic pattern of abuse that, up until now, usually has been directed at the radical left. Every day there was a new criminal justice story involving the president and his sexual scandal: subpoenaed dresses analyzed by the FBI Crime Lab; subpoenas to the president, the Secret Service, his lawyers, his secretary, to name a few in a very long list; leaks to the press; immunity to the twenty-four-year-old with whom the president dallied; immunity to her mother; and the jailing of those like Susan McDougal who refused to talk.2 And all these items, if you read past the front page in your newspapers, were assumed to be in the name of the grand jury working with the prosecutor, Ken Starr.
We seem to have slept through this whittling away of the Fifth Amendment right to remain silent and our right not to be forced to give evidence against ourselves and our friends. Despite these dramatic changes that have challenged our basic liberty, there is an overriding assumption of regularity—everyone seems to accept the Starr grand jury as just another fact of life. The clear abuse of the grand jury by Starr—his disrespect for the Fifth Amendment, for the attorney-client privilege—is but the most recent chapter in a history of grand jury abuse committed by the executive branch for decades. The only difference during the Starr investigation is that officials of the executive branch are the targets.
As this embarrassing spectacle was played out in the daily press, the federal prosecutor in New York secretly imprisoned a Palestinian physician for more than six months, even though he had not been charged with committing any crimes, for his failure to answer grand jury questions about the Palestine liberation movement. Dr. Abdelhaleem Ashqar, a diabetic, had been on a hunger strike since his imprisonment and had been force-fed by prison officials. Dr. Ashquar explained to the grand jury and the court that he was refusing to testify on the basis of his “long-held and unshakable religious, political and personal beliefs.” He said he “would rather die than betray [his] beliefs and commitments to freedom and democracy for Palestine.”
Under current law, a subpoenaed witness to grand jury who refuses to testify, as did Dr. Ashquar, is jailed until he or she agrees to cooperate. However, as the jailing is theoretically a form of coercion, and not meant as punishment, Dr. Ashquar could and should have been ordered released by the courts if it appeared that continued incarceration would not cajole him into testifying. A clearer case for release is harder to imagine. Dr. Asquar was willing to die rather than testify. His health was very poor, yet the prosecutor insisted on keeping him in jail, irrespective of his principles, his health, or, more to the point, his life. The court refused to order his release; instead it ordered him force-fed. Finally, after two months of forced feeding—Ashqar was shackled to the bed to prevent him from removing the feeding tubes—the court released him.
The grand jury as we know it today has two basic functions: to determine if there is enough evidence to hold a person for trial on criminal charges, and, through its subpoena power, to serve as an investigative tool of the prosecutor. The first of these functions is all but nonexistent, as the grand jury is now recognized to rubber stamp indictments that a prosecutor places before it. It makes no independent evaluation of whether there is sufficient evidence to support an indictment.3 The second function, as an investigatory body controlled by the prosecutor, is of much more recent vintage. The grand jury as an investigative tool of the prosecutor continues to expand dangerously out of control, confounding the separation-of-powers doctrine as the grand jury is no longer under the control of the judiciary.
The concept of the grand jury progressed from its early beginnings as a punitive and primitive form of inquisition under King Henry II in the twelfth century to the ideal of a shield against unjust prosecution—a panel of citizens that would review serious charges to determine whether there was sufficient evidence to hold a person for trial. Incorporated into the Bill of Rights to the United States Constitution, it was a notable advance in Western jurisprudence. The drafters of the Constitution were aware that in the past the grand jury had for the most part served the powers-that-be, losing its independence. But they also knew that the grand jury could be a force for justice. In 1765 a grand jury in Boston refused to indict leaders of the Boston Tea Party. Two grand juries in New York refused to indict newspaper publisher John Peter Zenger for criminal libel against the colonial governor. The challenge to the framers of the Constitution was to find a way to keep the grand jury independent.
Keeping the grand jury independent was but one of a number of different ways of insulating against political pressure and ultimately preventing tyranny through checks and balances that were addressed by the Constitution drafters in the separation-of-powers doctrine. Under that doctrine the three parts of government legislative, judicial, and executive—divided the tasks of governing; each had the power to prevent the others from usurping too much power. The grand jury was assigned to the judicial branch to insulate it from pressures from the executive and congressional branches.
Despite all good intentions, the grand jury continued on many occasions to serve partisan purposes. So it was that in Republican strongholds, sedition indictments were brought against Federalists; likewise, similar indictments were brought against Republicans by Federalist grand juries. President Thomas Jefferson used the grand juries to bring sedition charges against his political enemies. Grand juries enforced slavery, indicting people for abolitionist activity and harboring slaves.
For decades the grand jury was used as an arm of the executive branch to repress the development of the labor movement. In the 1880s seventy leaders were charged with inspiring the Haymarket riots in Chicago; in 1884 leaders of the Pullman strike, including Eugene V. Debs, president of the American Railway Union, were indicted for interfering with the U.S. mail. The International Workers of the World (IWW) was a particular target especially during World War I. Hundreds of IWW activists were indicted including its leader Big Bill Haywood. But not only labor union members were indicted by rubber-stamp grand juries. Victims included the anarchists Emma Goldman and Alexander Berkman, black nationalist leader Marcus Garvey, and Black Muslim leader Elijah Muhammad.
The idea of the grand jury as a shield against indictment died hard. In modern times, however, grand juries have been recognized as rubber stamps, agreeing to follow the dictates of the prosecutor in the vast majority of cases.4 As one commentator notes: “In periods of great turmoil and dissent, when the exploited and oppressed vocally expressed their view, 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.”5
It was not until after World War II that grand jury use of subpoena power increased. At that time the power to require the presence of every person to attend and testify or else assert his/her Fifth Amendment right to silence became prevalent. The tenor of the times encouraged this increased power. The House Un-American Activities Committee made the subpoenaing of Communists, anarchists, and others more acceptable, and so the subpoena power of the grand jury was dusted off as a tool in the war to ferret out the enemy.
A 1954 law, which applied only to national security cases and was promulgated according to President Dwight D. Eisenhower as a “means of breaking the secrecy which is characteristic of traitors,” permitted the grand jury with the help and guidance of the prosecutor (part of the executive branch), for the first time in U.S. jurisprudence, to compel the testimony of witnesses. The law apparently avoided offending the Fifth Amendment by granting the witness total immunity from subsequent charges in exchange for waiving the right to remain silent. Shy of using it, the government resorted to compelling testimony under it only three times. The requirement of granting full immunity did operate as a limit on prosecutorial zeal, for a witness who testified could rarely if ever be prosecuted.
Yet the new law still represented a major watering down of the right against self-incrimination. It meant that the protection of individual privacy embodied in the Constitution’s Fifth Amendment right to keep one’s thoughts inviolable could give way to the prosecutor or government’s claimed need for information. By granting immunity, the prosecutor could force the witness to be a snitch on pain of going to jail; it opened the door on the contemporary use of the grand jury as an investigatory tool of repression. In one of the most eloquent statements of the values protected by the privilege against self-incrimination and as an indication of what is lost by forcing individuals to testify on pain of prison, Supreme Court Justice Abraham Goldberg in Murphy v. Waterfront Commission6 outlined some of these values:
The privilege against self-incrimination “registers an important advance in the development of our liberty”—one of the great landmarks in man’s struggle to make himself civilized. . . . It reflects many of our fundamental values and most noble aspirations; our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incrimination statements will be elicited by inhumane treatment and abuses . . . ; our respect for the inviolability of the human personality and the right of each individual “to a private enclave where he may lead a private life. . . .”
The perfection of the grand jury as an investigatory tool under the control of the executive branch occurred early in the administration of President Richard Nixon. Under the guise of needing new and more powerful tools to reach the secret recesses of organized crime, the administration pushed the Organized Crime Control Act through Congress. The law not only allowed the prosecutor to exchange immunity for testimony, it limited the type of immunity offered so that the person compelled to testify could still be indicted for a related crime, albeit not on the basis of his or her compelled words or for that matter any direct fruits therefrom.7
The virtually unlimited power of the prosecutor to subpoena witnesses and compel testimony that we are witnessing today was developed under Nixon, a president whose attitude toward his enemies was not unlike that of King Henry II. By employing the new law that limited grants of immunity and compelled jail for refusals to testify, the Justice Department engaged in broad intelligence gathering against the antiwar movement. In the first three years of the 1970s, over one hundred grand juries were convened in eighty-four cities. More than 1,000 people were subpoenaed. The newly formed Internal Security section of the Justice Department took on the job of harassing and investigating people who expressed opposition to the Vietnam War. These subpoenas were used to gather intelligence, to harass, and to incarcerate people.
The government assault on the antiwar movement was widely—and accurately, as it turned out—understood to be a domestic intelligence-gathering operation. It was an important part of its effort to excoriate any person or group that expressed opposition to the Vietnam War. This suppression of dissent met tremendous resistance from the civil liberties and left legal communities as the cases of activists who refused to testify were litigated in the courts.
Prosecutors, knowing that many of the witnesses they sought would not talk, used their subpoenas as a simplified way of jailing protest leaders. Rally organizers were hauled off to grand juries on the eve of mass demonstrations. For example, in 1972 twenty-three leaders of the Vietnam Veterans Against the War were subpoenaed to appear before a grand jury on the day they were to hold a protest at the Democratic convention in Miami.
The abuses were not limited to one or two cases but were endemic. For example, Arthur Kinoy, an outspoken civil rights lawyer, was subpoenaed by a grand jury to testify about his daughter and answer questions about his political associations. Prosecutors claimed that Kinoy’s daughter, an antiwar activist, knew the whereabouts of another individual they were investigating. Kinoy charged that the subpoena was intended to intrude on his relationship with his daughter and interfere with his representation of her and other antiwar activists. He avoided jail only because of a ruling by a courageous federal judge.
That federal judge, Constance Baker Motley, upheld Kinoy’s challenge to the new limited “use” immunity statute. She found that it was an unconstitutional infringement on his Fifth Amendment rights. The government, afraid at that time of a somewhat liberal Supreme Court, did not appeal and for a moment was pushed back.
Over the next two years, the makeup of the Supreme Court changed. In 1972 the Court, in Kastigar v. United States, sanctioned the grant of limited immunity. And just like that, a major legal devaluing of the Fifth Amendment occurred.
Subsequent decisions added more tools to the prosecutor’s arsenal: no right to bail pending appeal of a contempt citation; a requirement to give the grand jury physical exemplars such as handwriting and fingerprints, without granting any form of immunity; the ability to incarcerate people for at least two years as a form of compulsion to testify once immunity has been granted; and the limitation of defenses a witness could raise.
The subpoena to Leslie Bacon illustrates many of the abuses that occurred in this period. Bacon, a young woman living in Washington, D.C., was subpoenaed to a Seattle grand jury in April 1971. This was just prior to the planned May Day demonstrations in the capital. She was hustled onto a plane, given no opportunity to contact an attorney, and told the grand jury was investigating the bombing of the Capitol. As she had not committed any crime, she decided to talk. She did not understand the consequences of testifying. Soon the prosecutor, Guy Goodwin, was asking her about her friends, political associations, the organizing of the May Day demonstrations, and a political commune in New York. Bacon finally decided to stop talking. Although she had given the government a lot of information, it wanted more and indicted her for perjury.8 The Bacon case shows that the government was using the grand jury to gather political intelligence about the antiwar movement and worse; subsequent to her testimony, federal grand juries in New York City, Detroit, and Washington subpoenaed many of those Bacon had named.
The Nixon grand juries were wide-ranging. Journalists, Black Panthers, nuns, feminists, teenagers, academics, supporters of Puerto Rican independence, and pacifists were hauled before grand juries on the flimsiest of excuses and jailed if they refused to talk. Few indictments were ever obtained, and almost no convictions. Rather than a shield to protect the accused, grand juries had become a sword for Nixon to wield against his perceived “enemies,” a rubber stamp for prosecutors, and a blatantly political tool that had little to do with justice and everything to do with revenge.
Grand jury abuse and harassment of activists did not end with Nixon’s resignation from office. In the 1970s and 1980s Puerto Rican Independentistas and black nationalists have been the primary targets. The government, unable to obtain evidence of criminal activity, has used grand juries both to gather intelligence about these movements and to jail their supporters. Dozens of activists who have insisted on their constitutional right to remain silent have been jailed without any charges or trials.
Until the Fifth Amendment right to silence, the right to not incriminate oneself, is read back into the Constitution, the grand jury will remain an altogether too potent form of repression to exist in a modern democracy. Until that time we may all be its victims.
The authors wish to acknowledge their use of information contained in Michael Deutsch, “The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists,” Criminal Law & Criminology 75 (1984): 1159. We thank Elizabeth Fink for her help with this chapter.
- The following is a typical example of the types of questions asked of an antiwar activist in the 1970s:
I want you to describe for the grand jury every occasion during the year 1970 when you had been in contact with, attended meetings which were conducted by, or attended by, or been any place when any individual spoke whom you knew to be associated with or affiliated with Students for a Democratic Society, the Weatherman, the Communist Party or any other organization advocating revolutionary overthrow of the United States, describing for the grand jury when these incidents occurred, where they occurred, who was present and what was said by all persons there and what you did at the time that you were in these meetings, groups, associations or conversations.
- Susan McDougal spent eighteen months in jail for civil contempt; she was then tried for criminal contempt, acquitted on one charge and the jury deadlocked on two charges. She was released in 1999.
- In more than half the cases now presented in federal court, the defendants waive their right to have the grand jury determine whether an indictment should issue and proceed through on information, which is a written accusation by the prosecutor.
- On occasion, the members of an individual grand jury, taking seriously their role of investigating and shielding, vote to issue subpoenas and to follow or not follow an investigation against the wish of the prosecutor. The government refers to these grand juries as “runaway” grand juries.
- Deutsch, “The Improper Use of the Federal Grand Jury,” 1174.
- 378 U.S. 52, 55 (1964).
- At the same time, the law prohibited the granting of “transactional” immunity—the kind conferred on Monica Lewinsky—as unnecessary. “Use” immunity was found to satisfy the Fifth Amendment right against self-incrimination.
- We had an expression during this period indicating the danger of answering any questions before the grand jury: “It’s like eating potato chips; once you start, you can’t stop.”