A people’s history of the grand jury> From defending protest to criminalizing dissent
Adrienne Weller February 2012 Freedom
Support in San Francisco, Jan. 25, 2011, for Midwest anti-war and solidarity activists harassed by FBI. Photo: Scott Braley
As the Iraq war draws to a close, more or less, the Obama administration is intensifying a campaign against radicals, war resisters, international solidarity activists, and whistle blowers at home. In recent months, the FBI has been knocking down doors and arresting folks on trumped-up charges in order to disrupt the activities of government critics.
Frequently those arrested find themselves brought before a grand jury, a group of citizens who hear testimony to determine if there is enough evidence to bring criminal charges. It’s a favorite weapon of federal prosecutors, used to intimidate activists and criminalize dissent.
This was not always the case. The concept of a grand jury originated in 12th-century England during the rule of King Henry II. In a direct challenge to the influence of the Catholic Church in Rome, he proclaimed that a person could not be tried on a criminal charge unless he was accused by a jury of local citizens first. By 1215 King John, who was facing a revolt by the nobility, was forced to sign the Magna Carta. This document limited the absolute power of the monarch and empowered the nobility to form a “jury of peers” to enforce the agreement.
In 1681, the grand jury gained status as a protector of the people against biased prosecution when it refused to consider treason charges leveled at Protestants by King Charles II, who was trying to re-establish the Catholic Church as England’s official religion.
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English settlers brought the tradition of the grand jury with them to North America. By 1683 all existing colonies had some type of grand jury system in place. During the colonial period, juries had more autonomy that they do today. One grand jury demonstrated its independence from the British crown by refusing to indict leaders of the 1765 Stamp Act rebellion. In 1791, the grand jury was incorporated into the U.S. Bill of Rights, which held that a person could not be tried for a federal crime unless charges were brought by a grand jury.
Throughout this period, grand juries proposed new laws, monitored civic affairs, and defended the people from unfair prosecution.
In subsequent years, the right of a grand jury to independently file criminal charges was lost due to ignorance of this right and its disuse. In 1972, the Supreme Court ruled that the federal grand jury requirement did not apply to the states, and some therefore eliminated use of the grand jury.
Unrestrained power. Today, grand juries are firmly under the thumb of federal prosecutors. These prosecutors control every aspect of the grand jury process, from deciding which witnesses to call to what evidence to present. Using the grand jury, federal prosecutors are under no obligation to expose facts that may contradict the charges, unlike at trial. Arthur Burns, a Reagan administration deputy attorney general, acknowledged this power when he said that a grand jury “is 100 percent in the control of the prosecutor.”
Handpicked by the prosecutor, grand juries can subpoena anyone and ask any question. Witnesses cannot have a lawyer present during the proceedings, nor can they present a defense. A witness can be jailed indefinitely for refusing to answer questions. And the whole process is closed to the press and public.
These rules prompted Judge Saul Wachler’s famous observation that a grand jury “can indict a ham sandwich!”
Government war on radicals and whistle blowers.
The grand jury has been used against U.S. resistance groups from pre-Civil War abolitionists to the Black Panthers and more.
Many who lived through the Vietnam War era remember COINTELPRO, the FBI’s domestic “counterintelligence” program. The FBI’s bag of dirty tricks included everything from forged letters to assassinations and the fraudulent use of grand juries. In 1971, a group of whistle blowers brought these abuses to light and exposed FBI schemes after burglarizing an agency field office in Pennsylvania.
Today, the government is at it again. Using the war on terror as a pretext, the FBI is stepping up its harassment of left-wing groups.
In the early hours of Sept. 24, 2010, gun-toting federal agents in Chicago and Minneapolis burst into the homes of anti-war and international solidarity activists and socialists. Eventually 23 people were hauled before a grand jury — and subsequently refused to cooperate with the government’s witchhunt!
In an expansion of the same witchhunt, FBI agents and Los Angeles sheriffs in May 2011 broke down the door of veteran Chicano leader Carlos Montes and arrested him on trumped-up gun charges. He was interrogated at length about the activities of the Freedom Road Socialist Organization and is currently facing 18 years in prison.
The only “crime” these activists have committed is educating people about U.S. imperialism and standing in solidarity with the people of Palestine, Colombia, and elsewhere. Apparently the FBI wants to charge these folks with providing “material evidence of support for terrorism.” To get involved in this important fight for freedom of speech and assembly, contact www.stopfbi.net.
Organize to stop the grand jury. The best way to stop abuses of power by the government is to publicly organize a vigorous and very vocal campaign of opposition. The Midwest leftists were right to refuse to cooperate with the FBI and the grand jury. If the FBI or other cops come to your door, refuse to let them in and demand to see a search warrant. Do not answer their questions. Even seemingly irrelevant information can be used against friends, family, and associates. Demand an attorney right away. It is illegal to conduct an interview once a person has requested a lawyer. For more information, see the December 2010 FS article, What to Do if the FBI Comes Knocking.
Last year, President Obama signed the National Defense Authorization Act. It allows for the arrest and indefinite detention of U.S. citizens suspected of aiding terrorists. Measures like this one shred the people’s constitutional rights to habeas corpus (the right to challenge in court the government’s basis for detention) and due process. In light of this, organizing to stop FBI witchhunts has never been more important.
Civil libertarians and human rights groups have long advocated reform of the grand jury system to curb its misuses. Stopping the menace of the grand jury will take precisely the kind of mass movement the government is currently trying to squelch.