women's community in Lexington, Ky., and New Haven, Conn., allegedly pursuing a tip about Susan Saxe and Katherine Powers, already under indictment for bank robbery in Boston. Hundreds of people were interviewed and asked detailed personal questions. Several who refused to answer the FBI's questions, were subpoenaed and jailed for contempt. No indictments were handed down in either community. Under severe criticism for its improper political spying, the FBI can cloak its political surveillance in the cloth of grand jury investigations, using the grand jury as a legitimate cover for its traditional intelligence collection. In New Haven and Lexington, most of the interrogation took place outside of the grand jury. Only persons who refused to cooperate with the FBI were subpoenaed to appear before the panel. Cooperation from others was obtained by either the suggestion or direct threat of subpoena. In Detroit, U.S. Attorney Ralph Guy has admitted that FBI agents are often sent to question people with blank grand jury subpoenas in their pockets.1 With the Internal Security Division dismantled, the FBI may be coordinating the nationwide direction of grand jury probes, taking advantage of the increased reliance now being placed on local U.S. Attorneys. If the Bureau can coordinate national information collection through grand juries, it will be able to channel much of its political spying through the new cover. Another instance of recent use of the grand jury for political purposes arises out of the 1976 grand juries in New York and Puerto Rico investigating "bombing and explosive charges." The grand juries were used to subpoena people identified in some manner with the Puerto Rican independence movement. Again the FBI used the occasion to interview hundreds in the Puerto Rican community about their activities and associations, threatening the recalcitrant with subpoena. The investigation initially focused on members of the Puerto Rican Socialist Party at the time of an electoral campaign in Puerto Rico in which PSP was an active participant, and during PSP organizing efforts for a July 4 demonstration in Philadelphia to call for a "Bicentennial Without Colonies." The bombings under question were "claimed" by the "Armed Forces of Puerto Rican Libration (FALN). A June 18 issue of the FBI's "Domestic Terrorist Digest" identified PSP with the FALN because PSP called for Puerto Rican independence, and “independence has been one of the demands of the [FALN]." Not surprisingly, the focus of the grand jury shifted to other Puerto Rican groups once the elections and demonstrations had passed without incident. Grand jury investigations aimed at the American Indian Movement, individuals associated with the Chicano movement, members of the gay community, and activist lawyers indicate that a new wave of political grand juries started in 1975. Yet this charge is not any easy one to prove because of legitimacy accorded to the grand jury and its misuse may not be readily apparent. The normal standards used to differentiate between a permissible investigation and a political intelligence operation are not adequate. For example, the stated purpose of the grand jury investigation will not be helpful, for all panels must have a criminal predicate. In most jurisdictions, a prosecutor can attest that the purpose of the panel is to investigate violation of the laws of the United States or the general conspiracy statute. One possible test is whether a witness comes under investigation because of his or her political affiliations. A political nexus should at least provide a strong presumption of impropriety. Yet a federal court in the New York bombing grand jury accepted the propostion that mere association with the Puerto Rican Socialist Party was sufficient to justify a subpoena. The apparent scope of the grand jury investigation will not necessarily reveal the political character of a grand jury. The Senate Committee on Intelligence distinguished between legitimate information and "intelligence about the political advocacy and actions and private lives of citizens." Yet a prosecutor may subpoena a witness to a grand jury panel only to make good the agents' threats to unwilling interviewees and thereby gather intelligence. A series of carefully tailored questions may then be put to the subpoenee which would not offend the most stringent relevancy test. 19 "The FBI Connection," Grand Jury Report, published by the Coalition to End Grand Jury Abuse (Winter 1976), p. 5. In re Torres, S.O.N.Y. No. 76 Misc. 11-188 (1976). Book II, p. 3. The Senate Committee also looked for instances in which the information gathered "has been used to discredit the ideas advocated and to neutralize the actions of their proponents." 22 But in the grand jury context, discreditation follows from the wholly legitimized of subpena, and may be reinforced if contempt proceedings result from inyoluntary grants of immunity. Occasionally, of course, current political abuse parallels the blatant excesses of Guy Goodwin era. For example, last month, a New York grand jury was informed that an alleged member of the FALN was an employee of the Hispanic Commission of the Episcopal Church. A grand jury subpoena was issued to the Bishop for: 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 members of the National Commission of Hispanic Affairs [hereinafter "Commission"]; (2) financial statements of the Commission including, but not limited to statements showing expenses, salaries, income, gifts and the 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; (5) the names and addresses of all persons attending said meetings, conferences and convocations. The Episcopal Church voluntarily provided the requested files to the grand jury. Nothing could better illustrate how simple it is for the unrestricted powers of the grand jury to be used once again for political intelligence and harassment. For this Congress and for this committee, the Nixon legacy is not a matter of the past, safety attributed to the isolated excesses of a discredited president. Without legislation, the grand jury will remain unchecked, and even further legitimated by a Supreme Court which continues to curtail rights rather than constraining abuses. Now that the ominous potential of the political grand jury for surveillance and harassment has been demonstrated, reform is required simply to insure that the abuses do not continue. 23 A detailed analysis of the several reform proposals before this committee is beyond the scope of my testimony. It should be clear however that any reform program must seek to limit those powers which make the grand jury such a seductive instrument for political abuse. Some fundamental guidelines for reform are clear: 1. The grand jury must be given greater independence and be freed from the control of the prosecutor; 2. Restrictions must be placed on the use of the subpoena power, by requiring prior approval of either the grand jury or a judicial officer; 3. Perhaps most important, compulsory immunity must be terminated. No other measure will suffice to eliminate the extraordinary power which this measure affords prosecutors to harass the politically active. Mr. BOROSAGE. The Center for National Security Studies has for the past 3 years focused on the intelligence agencies of our government and the conflict between their activities and the constitutional rights and liberties of American citizens. The members of the Center have investigated intelligence agencies and their abuses, and it is in that context and from that perspective that I'd like to make some of the comments that I have on the question of grand jury abuse. It seems to me that the way to begin any reform program is to begin, as Confucius suggested, by calling things by their right names. I think what you have in the grand jury is an institution that was transformed by the Nixon administration into a fearful instrument for political surveillance, intimidation, and disruption. When you talk about 22 Book II, p. 3. 23 Branzburg v. Hayes, 408 U.S. 669 (1972); Kastegar v. U.S., 406 U.S. 441 (1972): United States v. Dionisio, 410 U.S. 1 (1973) Calandro v. United States, 414 U.S. 338 (1974); United States v. Mandujano, 48 L. Ed. 212 (1974). reform of the grand jury system, you are now talking about the reform of an intelligence system which engaged in programmatic abuse over a period of years against political "dissidents" in this country. One way to highlight that fact is to look at the lineage of political repression. We discover that the grand jury is similar in function if not in form to the FBI's Cointelpro, the IRS's politically-motivated tax audits, or the Congress anti-subversive investigating committees. One of the tasks of intelligence agencies over time has been to gather information on suspect political groups and individuals and use that intelligence to harrass or disrupt their activities. Since World War II, the instruments of political surveillance have remained relatively constant: the informer; the wiretap and the bug; the screening of mail, of movement, and of open records. But the instruments for disruption change from period to period. In the 1950's, for example, in the campaign against Communists and subversives and Communist sympathizers, the entire range of Government institutions turned on them and they came under Government repression. But the characteristic instrument of the period was the congressional investigating committee. Using the great public consensus against Communists and the great stigma that would attach to anyone known as a Communist or Communist sympathizer, the congressional committees led in the attempt to disrupt or harass the Communist Party in the 1950's. It is clear from the work of McCarthy and others, the committee was the major instrument of disruption and harassment in that period. In the 1960's, the situation changed. Public attention became increasingly difficult to capture; the media provided ever less coverage, and far less stigma was attached to being a member of the Communist Party. As a result, the FBI went underground with Cointelpro. Cointelpro eventually spread to encompass the entire range of dissent in the 1960's. And I would suggest that the characteristic method of disruption of political groups in the 1960's was the secret and covert disruption Cointelpro program of the FBI. In the 1970's the dissidence increased. When the Nixon administration came into office, it faced the culmination of the antiwar movement, which grew as the administration continued its war in Vietnam. The administration attempted to line up each of the intelligence agencies to turn their attention to domestic dissidents, to gather intelligence on their operations, and help in the attempt to control them. In the infamous Huston plan, each of those agencies, including the foreign intelligence agencies, was brought together in an attempt to coordinate intelligence gathering. But the Huston plan floundered and was eventually abandoned on the objections of J. Edgar Hoover. At that point the Nixon administration turned to a different track. It turned to the Internal Security Division of the Justice Department and developed the political grand jury as a systematic instrument for not only political intelligence gathering, but for political disruption. I think this committee is well aware of the statistics of the number of grand jury probes that were launched by ISD under Guy Goodwin. From 1970 to 1973, ISD conducted over 100 Guy Goodwin-supervised grand juries in 84 cities of 36 States, and called some 1,000 to 2,000 witnesses by subpena. Targets included the Black Panther Party, the Vietnam Veterans Against the War, Daniel Ellsberg, the Los Angeles antidraft movement, the Catholic Left, Mayday, the Puerto Rican independence movement, the women's movement, and Irish unification supporters the entire range of the peace and civil rights movement of the time. The grand jury was used both for intelligence collection and for harassment. It is fairly clear, ISD fed information collected by the grand juries into the interdivisional information unit, the IDIU, which collected data from the FBI and other intelligence agencies and spread it out through the government. There is no absolute documentation of this practice, but we can tell from various pieces of evidence that now exist that, in fact, the IDIU did receive documents from the ISD political grand juries. But the major portion of the intelligence gathering didn't take place within the grand jury panel. It took place around it; that is, the ability of the FBI to threaten people it was interviewing with subpena before a grand jury greatly increased its ability to gather intelligence. And so the very existence of the grand jury enabled the Government to exercise its intelligence-gathering function against political dissidents in a way that it could not before. The second thing the grand jury was effective at doing was political disruption. It did this in a variety of different ways, and I'd like to give two or three examples. One is the use of compulsory process, the subpena, to disrupt the activities of a political group. For example, one of the plans that G. Gordon Liddy brought before John Mitchell in reference to the Nixon reelection campaign was a proposal: Kidnap demonstrators who might gather outside the Republican convention in San Diego, take them to Mexico, and hold them for a week. Obviously, the Attorney General found that ridiculous and told Liddy to go back to the drawing board. Yet, some months later the same process took place with the appearance of legality through the grand jury. When the Republican convention moved to Miami, the grand jury was used to subpena members of the VVAW who had planned to set up demonstrations around those conventions, drag them off to Tallahassee, some 500 miles away, to hold them there a week or longer to testify before the grand jury and totally disrupt their plans. What G. Gordon Liddy had suggested to the Attorney General to do illegally, the grand jury had done through its normal process. Compulsory immunity has the same kind of effect. One of the things the FBI would do in the Cointelpro was to plant "snitch jackets" on political dissidents. A "snitch jacket" is a packet of information which would lead your colleagues to believe that you are an FBI informer. The Bureau did this with some regularity, both in black movements and with the Communist Party. Obviously, the attempt is to create suspicion in the group. The grand jury process in its use of compulsory immunity has the same effect. If you call a witness before the grand jury, force him or her to testify in secret, overcome his objections to doing so through compulsory immunity, then the prosecutor has a whole range of things that he may do. He may hold the witness in contempt if he continues to refuse to testify, or he may simply let the witnesses go without holding them in contempt, and suspicion attaches as to whether or not the witness did testify in secret against his colleagues. The same effect of the "snitch jacket" is achieved through the grand jury. So, I think that when you approach the reform of the grand jury, you must approach it as a Nixon legacy which is now bequested to us. For when the Executive claims a new set of powers or exercises a new systematic form of abuse, that will slowly become legitimated over time unless the Congress or courts act to cut it back. And we can see from all present indications that once again some political grand juries are taking place. It is time, it seems to me, for this committee to carry through the great promise that it has already shown, and attempt to bring about the reforms that are necessary to return the grand jury to the protection of American citizens. I am not going to get into the details of that at this point, partly because my colleagues plan to do that, but it seems to me there are obviously three principles that should be followed, and I think H.R. 94 does a great deal in each of those areas. One is that the independence of grand jury from the prosecutor must be established and defended. The second is that limits must be put on compulsory process in the use of the subpena. There is no question that the use of the subpena can be used to disrupt political movements in a way that democracy cannot stand. And third, compulsory immunity must be removed from the process. The ability to force people inside a secret panel to testify under compulsion gives the prosecution a tool which greatly adds to the authority over political dissidents. I thank you. Mr. EILBERG. That was Robert L. Borosage, representing the Center for National Securities Study. I appreciate very much your staying within the time limit. Next we will have Ms. Linda Bakiel, representing the grand jury project. TESTIMONY OF LINDA BAKIEL, GRAND JURY PROJECT Ms. BAKIEL, Thank you. The grand jury project is an organization that attempts to provide information to prospective grand jury witnesses and to political groups and communities about their rights. It attempts to help them protect their rights under the current laws regarding grand jury testimony. One of our major concerns is to prevent the use of grand juries as a means of doing things, such as described by Mr. Borosage, and I would like to describe to you the ways in which present grand jury procedure has permitted the use of grand juries as an effective Cointelpro program to disrupt political activities and the lives of people who have been subpenaed. I became concerned with the problem in the spring of 1971 where the very small neighborhood I was living in in Philadelphia was liter |