RECONSTITUTIONALIZING THE GRAND JURY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88-01314R000100530007-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 16
• Document Creation Date: December 16, 2016
• Document Release Date: October 15, 2004
• Sequence Number: 7
• Publication Date: April 1, 1977
• Content Type: MISC

STAT
NATIONAL SECURITY AND CIVIL LIBLRT]
APRIL 1977
Also In
This Issue
VOL. 2, NO. 8
The Carter Devolution
on the CIA: A Chronology
By Jerry J. Berman, p. 9
In The News, p. 12
In The Courts, p. 13
In The Literature, p. 14
The Carter Administration;
In the Mood for Reform?
By Morton H. Halperin, p. 16
Reconstitutionalizing the Grand Jury
The Intelligence Program of the
Grand jury
Cloaked in legitimacy, but combining the functions of
the anti-subversive Congressional investigating committees
and the FBI's COINTELPRO, the grand jury is one of
the Executive's most powerful and durable weapons
against dissent. Grand juries are the engine of a vast
system of political intelligence-gathering. Subpoenaed wit-
nesses are asked to name names, repeat what occurred at
formal and informal meetings, catalogue people's where-
abouts, thoughts, travels, and relationships-political,
personal and sexual.
However, the grand jury's intelligence gathering func-
tion reaches far beyond those subpoenaed. Grand jury
abuse is characteristically attended by the flooding of the
targeted community with FBI or other federal agents. By
threatening subpoena, agents gain entry into homes and
the cooperation of reluctant interviewees; when the FBI
descended on the women's movement communities in
Lexington, Kentucky and New Haven, Connecticut, hun-
dreds were intimidated into giving interviews. Subpoenas
went only to the ten who held fast to their right to si-
lence. For everyone, the ordinariness of everyday life
was immediately shattered. By usurping the grand jury's
subpoena power, "law enforcement" provides the execu-
tive a despotic power to coerce information-a power
which Congress has consistently refused them.
Empowered to turn a participant to every conversation
into an informer, the grand jury generates suspicion, di-
viding friends, co-workers, communities, and even fami-
lies. People question why a person was selected for sub-
poena, and what, if anything was said in the intermin-
able minutes during which a witness was alone behind
the closed doors of the grand jury room. As to those
not formally subpoenaed, one wonders what was said,
however unwittingly, to the agents. The government may
subpoena actual informants to clear them of possible sus-
It it at all times necessary, and more particularly so during the progress
of a revolution and until right ideas confirm themselves by habit, that
we frequently refresh our patriotism by reference to first principles.
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 FIRST PRINCIPLES: NATIONAL SECURITY AND CIVIL LIBERTIES
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picion, as was done in the VVAW-8 case; or by delay-
ing a witness in the jury room or inexplicably dropping
the subpoena the prosecutor may lead associates to be-
lieve an innocent friend to be an agent, just as did
COINTELPRO's "snitch jacket."' The substitution of
wariness for trust in the relations of everyday life is a
legacy of the FBI-grand jury onslaught.
Grand jury proceedings are also used to divert con-
structive political energy into all-consuming legal de-
fenses, disrupting on-going work. Subpoenas, timed to
interfere at critical moments in organizing activities, force
people to travel great distances from their homes and
communities, and remove leadership by jailing them for
contempt. Just as in 1972 when Irish unification support-
ers were dragged to Texas by subpoena, today Chicano
activists from New Mexico are being subpoenaed to Chi-
cago and New York. Although allegedly rejected by At-
torney General John Mitchell, G. Gordon Liddy's plot to
kidnap organizers planning to demonstrate at the Repub-
lican Convention was effectively carried out through a
grand jury in Tallahassee which, by issuing subpoenas,
spirited away 23 VVAW organizers and demonstrators
from the convention site in Miami. For over a year, the
resources of VVAW were poured into defending against
the subpoenas and a spurious indictment.
Often striking those on the fringes, the grand jury ex-
acts an enormous price for free expression and associa-
tion. Its message: if you get too close to anyone or
anything remotely political, you'll have to choose be-
tween informing and resisting. Resistance means a court
battle, publicity, imprisonment, implication of criminal
involvement, loss of privacy and job, and harassment of
friends and family.
Perhaps the greatest danger to civil liberties is the use
of the grand jury to fulfill COINTELPRO's objective to
"disrupt, discredit and neutralize" legitimate political ac-
tivity by labeling it as "criminal" or "terrorist." Mere is-
suance of the subpoena plants the suspicion. Judicial ap-
proval, taking "the Fifth," refusing to answer carefully
framed questions about criminal conduct, and incarcera-
tion for contempt all serve to legitimize the equation of
ideology and terrorism. The grand jury investigation is
played and replayed in the press and spurious indict-
ments may issue. For example, when the Puerto Rican
Socialist Party (PSP) was running candidates in the 1976
elections on the island, an independentista's plea of the
Fifth and refusal to testify before a grand jury which
was allegedly investigating a theft of explosives was
prominently reported in the press. The publicity about
his refusal resurfaced just before the government was to
try an explosives indictment against a PSP member. Al-
though the indictment was dismissed for prosecutorial
misconduct on the first day of trial because the government
could not prove a theft had occurred, the jury panel's answers
to the voir dire' demonstrated that the public had made the
desired connection between PSP and terrorism.
Finally, the grand jury gives the prosecutor the power
to jail resistors and activists for long periods, bypassing
indictment, the burden of proving guilt, trial by jury,
fendants who have been actually accused- of crime.
Legitimating Myths
The grand jury's power exceeds and outlives that of
other intelligence programs because it is mythologized as
legitimate and democratic.
The accoutrements of a lawful process veil and en-
hance the grand jury's threat. Unlike other intelligence
programs, the subpoena is not a surreptitious device; it
is an overt and apparently lawful process of the court.
It invades privacy, thoughts, homes and relationships
without the inconvenience or violence of raw physical
entry. All this is done in the name of an allegedly legiti-
mate investigation of criminal activity, yet the criminal
act alleged to be investigated may be real, fabricated, or
engineered by the government itself. The government
need not show any connection between the witness and
the criminal act, but conviction by subpoena is virtually
guaranteed because of the damage to reputations.
This power both to stigmatize and probe is wielded
through the instrument of an unrepresentative, manipu-
lated, and ignorant grand jury, totally dominated by the
prosecutor. The dangers of secret inquisitions are ex-
cused, however, because it is said to provide a commun-
ity-presence; the refusal to cooperate brands one as an
enemy of the people.
The grand jury thus provides a perfect cover for po-
litical intelligence. Draping the mission of law enforce-
ment in an apparently lawful "people's" institution, the
modern grand jury is far more resistent to repudiation
and constraint than were its predecessors. Because of its
historical cloak, grand jury abuse has escaped the broad-
based public condemnation dealt to similar intelligence
practices, by other agencies, and it is not discussed in the
reports of either Senate or House committees investigat-
ing intelligence agencies.
Moreover, the Supreme Court's activist conservative
majority has facilitated the absorption of the grand jury
into the machinery of law enforcement, legitimizing its
transformation from an accusatorial shield into a modern
inquisition-
The Grand Jury As Constitutional
Loophole
As currently used, fundamental constitutional safe-
guards of the accusatorial system have been eliminated,
and there is no check on the misuse of the subpoena
power of the grand jury. A witness has no right to ob-
ject to the subpoena as the fruit of an illegal search or
seizure or as having been designed to circumvent the
Fourth Amendment's' safeguards. The Fourth and the
Fifth Amendments no longer even protect a target
against compulsion of physical or documentary evidence.'
The Fifth provides protection only if the witness is
aware of the details of his or her rights;' even that pro-
and the panopl9tpjpro ediFtboRel @ri OO46 W8fe-CIA-F BPMiflt3t 4RQDOM0631MA7e-g by forcing upon the
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witness executive-controlled "use" immunity, which does
not preclude later prosecution but which does open the
door to punishment for silence.' Even the Sixth Amend-
ment right to counsel is in jeopardy.'
The grand jury has thus become the major loophole in
our constitutional scheme for criminal justice. The shift
from an accusatorial to an inquisitorial system is felt not
only by the grand jury witnesses, targets, and accused,
but by all society. When illegally secured evidence can
be used before the grand jury, no one is secure in their
homes or effects. When a person can be jailed for si-?
lence, the presumption of innocence and the standard of
reasonable doubt no longer constrain the power of the
state to stigmatize and imprison its "enemies."
Applied to the investigation of crime, these inquisi-
torial powers are oppressive enough; but when directed
against political dissidents, they threaten the basic work-
ings of a democratic system.
Abolition or Reform?
The pressing question today is what to do with the
monster the grand jury has become. To date, the only
real check on grand jury abuse has been the willingness
of hundreds to face jail rather than sacrifice basic rights
and principles. A weapon so potent as the grand jury
has not and cannot be expected to be voluntarily re-
linquished by the executive or restrained by the Nixon
Justices. An act of Congress is required.
The Subcommittee on Immigration, Citizenship and In-
ternational Law of the House Judiciary Committee, under
the chairpersonship of Joshua Eilberg, has been the lead-
ing force behind grand jury reform and is considering a
variety of proposals ranging from abolition of the ac-
cusatorial grand jury to significant reform.
Supporters of abolition come from diametrically
different perspectives. Some view the grand jury as hav-
ing been irreversibly captured by the prosecutor and em-
phasize the dangers of an apparently democratic institu-
tion camouflaging rather than curtailing the excesses of
executive power. Others urge the wastefulness of retain-
ing an institution which does no more than rubber
stamp the prosecutor's will. Under former Attorney Gen-
eral Levi, the Department of justice supported a "consti-
tutional amendment that would give the attorney for the
government election to proceed either by information or
by indictment."' The Department wanted this choice in
order to be able to use the grand jury for its compul-
sory investigatory process or as a dress rehearsal for
trial.'
The arguments for abolition highlight the enormity of
the task before the Congress, but they do not compel
the view that abolition would be the best or even an ac-
ceptable alternative. To amend any portion of the Bill of
Rights because repressive forces of government have
rendered it ineffectual is a dangerous precedent indeed.
Beyond that, history cautions against abolition and il-
lurriinates the guiding principles for reconstitutionalizing
Common I.aw Origins of the
Grand Jury"
Henry II established the grand jury by the Assize of
Clarendon in 1166. Citizens were periodically convened
as grand jurors to present to the royal judges those peo-
ple who the community suspected of crime. Intended by
the Norman conquerors to enhance their control over the
population, the grand jury quickly demonstrated inde-
pendence and resistance to arbitrary an oppressive state
power:
Though established to do the king's bidding grand juries
functioned, even under Henry, to protect the community.
Though subject to penalties, grand jurors had the power
not to accuse even those known to be guilty of offenses.
Absent a private appeal or accusation of a grand jury,
the king was stymied and could not punish the wrong-
doer. It was not uncommon in Henry's reign for grand
juries to flee to the woods rather than report what the
royal inquisition demanded."
As a result of the independent and protective role of
the grand jury, presentment by a grand jury became one
of the cornerstones of due process guaranteed by the
Magna Carta. By the mid-fourteenth century, the grand
jury had begun to screen accusations mady by others
and to return indictments. Under the reign of the Tu-
dors, crown officials, equipped with subpoena power,
generally prepared the accusation. It was then submitted
to the grand jury, which might summon witnesses to
evaluate the sufficiency of the charges. There were two
crucial distinctions between this subpoena power and that
exercised today. It was limited by the accusatory func-
tion and by the individual's right to refuse with impun-
ity to take the oath:
The subpoena power compelled a person to appear but
could not be used to compel. them to testify or give evi-
dence. Justices of the Peace were not supposed to place
suspected persons under oath, and they were not sup-
posed to question such persons directly if they did not
wish to be questioned. The right against self-incrimina-
tion, as a corollary of the right to grand jury indictment,
was a well-recognized right of late medieval times. The
right against self-incrimination was an absolute right to
silence. No person could be forced to take the oath and
if the oath was refused no punishment could be im-
posed."
Although the grand jury lost initiative to the king's of-
ficers during this period, it was still a community check
on royal power. Claiming insecurity of the dynasty, vio-
lence, and lawlessness, the Tudors justified by-passing
both grand and petit juries and perfected an inquisitional
system through the Star Chamber and the High Commis-
sion. Proceedings were initiated "on information," i.e.,
by informers or the government itself. Witnesses were
not charged with any specific offense, but were admin-
istered the oath ex officio:
This placed the victim between hammer and anvil. He
must swear, tell the truth, and be condemned out of his
own mouth, or he must lie and he convicted of the hein-
ous ecclesiastic offense perjury. And for refusal to take.
Sh-
.
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the grand jury. Approved For Release 2004/10/28
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The trilemma posed by these hated inquisitorial bodies is
the same as that faced by grand jury witnesses today
who are given forced "immunity." The vagueness of the
boundaries and purposes of the inquiry are also a com-
mon features.
Although the Revolution of 1641 abolished these in-
quisitorial courts, accusation by information for misde-
ineanors survived. Informations charging seditious libel
provided the prime instrument of oppression against poli-
tical dissidents in seventeenth and eighteenth century
England.
power to punish a person for refusing to give testimony.
ITlhe inquisitorial powers claimed by both the Executive
and the Supreme Court for the modern grand jury are a
perversion of its historical role and function. The power
to inquire which inhered in the common law grand jury
was connected to its accusatorial or screening function.
This is the function mandated by the constitution . . . It
is the acquisition of control of the grand jury by the Ex-
ecutive, together with the power to force immunity which
has effectively converted the grand jury into a star cham-
ber, which was its very antithesis."
Reconstitutionalizing the Grand Jury
The modern grand jury, usurped by the prosecutor
and invested with sweeping inquisitorial powers, thus
bears scant resemblance to the people's protector en-
visaged by the framers. History demonstrates that the
task of reform is to:
1. Encourage the grand jury's independence from
the prosecutor;
2. Confine the grand jury to its constitutional
screening function;
3. Reinvest the process with the safeguards of the
Bill of Rights; and most decisively,
4. Eliminate any form of compulsory immunity.
Space doesn't permit comprehensive discussion of the
reforms necessary to begin this process; the focus here is
on those changes urgently needed to reduce the capabil-
ity of the grand jury as an intelligence tool against First
Amendment protected activities and relationships.
Controlling the Issuance of
Subpoenas
The absence of any check on the issuance of sub-
poenas significantly expands the repressive powers of the
law enforcement establishment. FBI agents fill in or alter
subpoenas, unbeknownst to the grand jury or even the
prosecutor. As we have seen, the grand jury's intelli-
gence-gathering potential is largely accomplished through
the agent's threat or "suggestion" of subpoena to balk-
ing interviewees. Beyond that, many equate subpoena
with an immediate and unchallengeable command to
comply and thus the subpoena may afford the agent ac-
cess which could never pass standards the Fourth
Amendment sets for search warrants. Subpoenas are be-
ing served with a notice that their command will be
deemed satisfied if the information is provided or de-
livered to the FBI.
To wrest this enormous power from the prosecutor
and the agents, subpoenas should not be permitted to
sue unless the prosecutor justifies under oath the nexus
for the subpoena and the grand jury approves it. The
mission and Aip Prg dr -4k4tealsiecgl / Q/28 : CIA-ROP8-?st l o MMr$0eO1hobasis for. his or her
"To the Grand Jury, Defender of
American Liberties''
When transplanted to the American colonies, the grand
jury "bloomed with all the vigor of a native plant."" In-
dictment was a matter of right for serious offenses, in-
cluding libel. In the tradition of medieval England, the
grand jury reasserted the initiative to make accusations
and to hear live witnesses rather than accepting the
magistrate's written findings. As in England, refusal to
take the oath, which the Fifth Amendment privilege em-
bodies, could not be punished.
The colonists struggled fiercely against attempts by the
king's officers to circumvent the grand jury. Describing
informations for libel as a child of the Star Chamber,
Andrew Hamilton grounded the successful defense of
Peter Zenger on the disregard of two grand juries' re-
fusal to indict:
If Mr. Attorney is at liberty to come into court, and file
an information in the King's name, without leave, who is
secure, whom he pleases to prosecute as a libeller? ...
And give me leave to say ... that the mode of prose-
cuting by information (when a grand jury will not find a
billa vera) is a national grievance; and greatly inconsist-
ent with that freedom, which the subjects of England en-
joy in most other cases."
The same bypass was attempted in the establishment
of the Admiralty Courts because common law juries in
America would not convict smugglers. In the famous
trial of Sewall v. Hancock in which John Adams was
defense lawyer, the violation of the fundamental right to
grand jury indictment was likewise on trial. That trial
was discontinued when a Suffolk grand jury indicted the
Governor's unsavory informer for perjury. Later the fed-
eral Fugitive Slave Act of 1850 set up special commis-
sioner's courts to vitiate state "liberty laws" which inter-
posed local grand juries to shield fleeing slaves from
slaveowners.
Summarizing this history, Professor Scott writes:
The grand jury was written into the Bill of Rights because
it became, in common law England and particularly in
the colonies, a leader and symbol of community resist-
ance to arbitrary and oppressive state power. History
teaches that in both England and the colonies, despotic
rulers were constantly experimenting with more "efficient"
and controllable mechanisms to circumvent the grand
jury. The most devastating of these were the High Com-
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subpoena and whether he/she is a target, notice of his/her
Fifth and Sixth Amendment rights, and two weeks time
to prepare to respond. In addition, subpoenas should be
invalid if based on an illegal search and seizure or if
preceded by official threats to the unwilling in order to
encourage them to submit to informal questioning or
search.
Judicial Review and Protection of
First Amendment Rights
Since the Supreme Court's refusal in .Brarizburg z).
Hayes 19 to give weight to First Amendment rights in the
grand jury context, witnesses' claims of political abuse
have been ignored or subjected to impossible burdens of
proof.
Courts consistently bifurcate the grand jury process-
and ignore prior FBI interrogations, threats, and illegal
searches which have led up to the subpoena itself. Even
where a court has characterized the FBI's conduct as
"police state tactics," it refused to treat these tactics as
relevant for fear of putting "the court in the position of
passing judgment on the prudence or imprudence of in-
dividual agents' investigative techniques.20 The intelli-
gence-gathering and harassment purpose of the subpoena
will evade review unless judged in the context of the en-
tire investigation.
Because the grand jury is claimed to be pursuing le-
gitimate law enforcement goals, the protection of First
Amendment rights requires more sophisticated and
probing scrutiny into grand jury procedures than, by
comparison, HUAC or COINTELPRO operations. For ex-
ample, it is not enough to look at whether the questions
put to the witness violate associational privacy. It is im-
portant to examine whether the witness was singled out
for subpoena on the basis, directly or inferentially, of
protected First Amendment: activity.
Lureida Torres, a Puerto Rican teacher, spent four
months in jail for contempt. The first time she was sub-
poenaed she was asked about her associations as a uni-
versity student eight years earlier. The second time the
prosecutor asked her to identify persons involved in
FALN21 bombings. Looking only to these laundered ques-
tions, the Court disregarded the fact that she was selected
for subpoena solely because of her membership in PSP.
The FBI's "Domestic Terrorist Digest" links PSI' and
FALN simply because they both support Puerto Rican in-
dependence.2Y
Edgar Maury also espouses Puerto Rican independence.
FBI agents told him that he was selected for questioning
before a federal grand jury in Puerto Rico because he
had rented a truck during ?a time period covered by a
government investigation, was a supporter of Puerto
Rican independence and because his father had been a
n{ember of the Nationalist Party in the 1950's. It was the
latter considerations which caused the FBI to single him
out from the hundreds of other truck renters in Puerto
Rico. The government's mere allegation that a crime was
under investigation and that'the subpoena related to it,
foreclosed a hearing on Maury's showing of political ha-
In such cases the subpoena should be quashed unless
the government discloses all its information about the
witness and proves that his/her selection was completely
independent of First Amendment activity, and that the
evidence sought from the witness is both of overriding
importance and necessary to effectively pursue the in-
vestigation at that time and not otherwise available.
Finally, controversial witnesses are presently helpless to
prevent themselves from being convicted as criminal or
terrorist in the press. Although government attorneys
refused to disclose the subject matter of the VVAW
grand jury to the witness' counsel, an article in the At-
lama Constitution, based on a Justice Department source,
was headlined "BOMB PLOT AGAINST GOP PROBE"
and described a massive anti-personnel bombing conspir-
acy. Needless to say, no evidence of any explosives was
produced in the criminal proceedings which followed.
Groups are without protection from this kind of maneu-
ver, for civil or criminal remedies against the prosecutor
which are brought to bear after the fact cannot preserve
fragile First Amendment rights. Subpoenas should be
quashed where the government assists in publicizing the
grand jury, with the effect of linking First Amendment
protected activity with criminal conduct, regardless of
whether the information is technically a breach of grand
jury secrecy.
And finally, a witness should be entitled to claim an
absolute First Amendment privilege so as not to be
branded with the stigma of pleading the Fifth Amend-
ment's protection against self-incrimination.
Counsel for the Witness
Without the representation of counsel, rights cannot be
preserved nor abuse curtailed in the grand jury process.
Given the trend in the Supreme Court", Congress must
guarantee to the unwary or indigent grand jury witness
the same right to counsel enjoyed by the sophisticated
and affluent and' forbid the present practice of forcing
the witness into the jury room alone, without his/her at-
torney.
However, proposed legislation which appears to guar-
antee this right restricts Counsel to advising the witness
and gives the court the power to remove counsel who
violates this restriction or in some other undefined way
threatens to delay or impede the proceeding."
These are inappropriate and dangerous limitations. The
proposed statute also appears to bar the grand jury from
hearing from counsel even if it wants to. Such restric-
tions ignore the potential salutary role that counsel can
play in explaining to the grand jurors the witness' posi-
tion and their powers and duties with respect thereto.
The perspective of the witness's counsel is essential to
the grand jury's capacity to question the prosecutor, ex-
ercise its powers independently to prevent abuse, and re-
spect the rights of both witness and potential accused.
.Counsel is allowed such participation in Minnesota and a
Supreme Court justice there, interviewed by the Ameri-
can Bar Association, reported no problem." Congress
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judgment of the grand jury and the discretion of the
courts.
Moreover, the dangers of authorizing removal and re-
placement of counsel are obvious. It would invite depri-
vation of effective counsel of choice and would intimi-
date counsel from adequately advising the witness and
presenting legal challenges. Courts are fully equipped
with less drastic powers to deter and punish improper
conduct by counsel. These powers are too often abused
in cases involving politically controversial defendants or
attorneys. Rather than requiring or even authorizing re-
moval of defense counsel, it would be far more appro-
priate, given recent history, to require sanctions against
misbehaving prosecutors.
Independent Legal Advisor to the
Grand Jury
The protective function and independence of the grand
jury is stymied as long as the prosecutor continues to be
both advocate for indictment and legal advisor to the
grand jury. So blatant a conflict of interest is not toler-
ated in any other judicial context, let alone one which
so pervasively threatens basic constitutional rights. Not
only must the prosecutor be returned to the common
law status as litigant before the grand jury, but the
grand jury should have available an independent legal
advisor to enable it to effectively question the prose-
cutor's case or purpose in conducting an investigation, to
research legal issues, analyze evidence, ferret out exculpa-
tory material, etc. To ensure against overprofessionaliza-
tion or control by the legal advisor, the position should
be a rotating one, perhaps modeled after the system of
assigning recent law school graduates as law clerks to
federal judges.
Institutionalizing an independent legal advisor for the
grand jury does not eliminate the need for appointment
of special counsel or prosecutors to assist the grand jury
in carrying out independent investigations. History and
sound public policy dictate, however, that the power to
conduct independent investigations be confined to situa-
tions in which official misconduct is at issue.
Encouraging Grand Jury Activism
It is important to take steps toward increasing the in-
dependence of the grand jury in the process of obtain-
ing evidence, by requiring that the grand jury be in-
formed by the court or "charged" concerning its accusa-
tory function and powers, and that it vote on the is-
suance of subpoenas, the necessity for compelling the
witnesses' testimony (e.g., approving immunity orders,
even if voluntary) and the necessity and appropriateness
of charging a witness with recalcitrance.
Proposed legislation would also require a two-thirds
majority for the indictment. But given the lower stand-
ard for indictments, and the essentially one-sided nature
of the evidence the grand jury considers, unanimity
should be required. Unanimity should likewise be re-
quired when the grand jury votes to cite a witness as re-
calcitrant, since the grand jury is the only community
screen and its citation for refusal to answer is, as a mat-
ter of public opinion, tantamount to conviction.
The Baseline Reform : Eliminating
Coerced Immunity
The most urgent reforms required to reconstitutionalize
the grand jury are both the elimination of any form of
coerced immunity and the authorization of voluntary trans-
actional immunity. The efficacy of reforms designed to en-
courage grand jury independence and meaningful judicial
review is, at least in the short run, uncertain. Restoring the
absolute right to silence enjoyed under the common law is
the only decisive control.
The original understanding of the Fifth Amendment as a
"shield of absolute silence" and a protection against in-
voluntary informants is found in some of the early deci-
sions of the Supreme Court Justices. Dissenting in Brown v.
Walker," which upheld a narrow form of transactional im-
munity, Justice Field wrote:
(Bloch the safeguard of the Constitution and the common
law rule spring alike from the sentiment of personal 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. In scarcely
anything has that sentiment been more manifest than in the
abhorrence felt at the legal compulsion upon witnesses to
make concessions which must cover the witness with lasting
shame, and leave him degraded both in his own eyes and
those of others.
Indulging the fiction that immunity substitutes for, but does
not divest, the Fifth Amendment, a series of decisions since
Brown have chipped away at its guarantee of silence; the
Burger Court has recently obliterated it.!"
Coerced immunity in the grand jury process is, in fact, a
very recent phenomenon, begun on a limited scale in 1954
to get the "Fifth Amendment communists." Limitless "use'
immunity, unrestrained by judicial review or the inability
to prosecute the witness for the crime under investigation,
came into being in 1970. But the evil of coerced immunity
exists whether it be "use" or "transactional,` for it allows
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the government to punish silence.
The despotic potential of such power counsels against its
use under any circumstances. Though the Department of
Justice strenuously asserts the necessity of forced immunity,
it has failed to record or demonstrate how it has been used,
in what contexts it produced testimony which would not
otherwise be obtainable through a voluntary exchange, of
transactional immunity or other investigative means, and
whether the testimony covered was useful, let alone essen-
tial, to conviction.
It is clear, for example, that where subpoenas invade First
Amendment protected rights and relationships of intimacy
and trust, coerced immunity has served only illegal pur-
poses of intelligence-gathering, stigmatization and incarcera-
tion. Even in organized crime investigations, its usefulness
is hotly disputed, and one wonders whether their forced im-
munity produces either cooperative or reliable informants.
Nonetheless, it is predicted Congress will blindly follow the
Justice Department's exhortations and, at best, restore
forced transactional immunity and require judicial review.
At the very least, Congress should order a thorough inquiry
by the General Accounting Office before assuming that
there is even marginal efficacy found in using coercive im-
munity in any context.
Finally, given the stigma that attaches to "taking the
Fifth," particularly in the political context, the government
should have to assure the witness immunity before he/she is
required formally to lodge the plea.
"Recalcitrant" Witnesses
A ceiling on the period of punishment for contempt,
whether civil or criminal, is crucial to mitigating the power
of the grand jury, particularly if coercive immunity remains
available. The American Bar Association has supported a
non-reiterative six-month limit on "coercive" incarceration.
The conduct of recalcitrant witnesses in recent years,
however, suggests the contemner testifies before or very
shortly after incarceration and that six months is unwar-
ranted and punitive, rather than "coercive."
Conclusion: Urgent Need for
Reform
Maria Cueto, former director of the Episcopal Church's
National Commission on Hispanic Affairs, and Raisa
Nemikin, a secretary there, are in jail until July 1978 for
refusal to testify in response to subpoenas which attempt to
link the Hispanic Commission with the FALN and discredit
activist social ministries sponsored by progressive church
groups. Radical sports figure Phil Shinnick and sportswriter
Jay Weiner were jailed for their refusal to cooperate with a
Scranton, Pennsylvania grand jury purporting to investigate
the harboring of Patricia Hearst. Shinnick was released by
the Justice Department shortly after Tom Wicker devoted a
column in the New York Times to his case; Weiner, being
lesser known, was held three months longer, until released
by the judge. Jill Raymond, the first victim of the post-
Nixon wave of grand jury abuse, spent 14 months in Ken-
tucky county jails and was spared resubpo:na to a non-
existent investigation in 1976 as a result of intense public
pressure. By contrast, subpoenas against three filmmakers,
editing a film on the Weather Underground, were dropped
without a court battle because of immediate, widespread
protest in the Hollywood community, which remembered
the havoc of the 1950's.
Congressional reform is urgently needed. But if enact-
ment of voluntary immunity, which is absolutely critical to
curbing grand jury abuse, is in doubt, reform will only
mitigate the impact of abuse, but not decisively curb it.
Meanwhile, as we have seen, the political intelligence pro-
gram of the grand jury under post-Nixon administrations, is
increasingly carried out under a carefully tailored cloak of
criminal investigations. All this suggests that recalcitrant
witnesses and interviewees will continue to be a major con-
straint on grand jury illegality and that their success, as
well as the efficacy of any reforms, hinges ultimately on the
public's ability to reject the legitimacy myth that surrounds
the grand jury.
'Rhonda Copelon is a staff attorney with the Center for
Constitutional Rights, which has been counsel to numerous
witnesses challenging grand jury abuse. This article, a sequel
to Judy Mead's "The Grand Juries. An American Inquisi-
tion," (First Principles, September, 1976) draws on testimony
of a panel of experts invited to testify on March 17, 1977 in
hearings on federal grand jury reform before the Subcommit-
tee on Immigration, Naturalization and Citizenship of the
House Judiciary Committee. The panel consisted of Doris
Peterson, attorney with the Center for Constitutional Rights,
853 Broadway, NY, NY 10003; Robert L. Borosage,
Director of the Center for National Security Studies, 122
Maryland Ave. NE, Washington, DC 20002; Linda Backiel,
attorney with the Grand Jury Project, CCR, 853 Broadway,
NY, NY 10003; and Dr. J. Anthony Scott, Professor of
Anglo-American Law, Rutgers University Law School,
Newark, N.J. Copies of the complete testimony are available
on request from the individual panelists.
1. In COINTELPRO, the snitch jacket was misinformation
planted to create the suspicion that a colleague was a Bureau in-
former
2. In the selection of a trial jury, voir dire is the process of ques-
tioning prospective jurors to determine if they are biased.
3. United States v. Calandra, 414 U.S. 338 (1974).
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s J ~.
 FIRST PRINCIPLES: NATIONAL SECURITY AND CIVIL LIBERTIES
118 ? ~ F?
Approved For Release 20
- - -
4. United States v. Mara, 410 U.S. 19 (1973); United States v.
Dionisio, 410 U.S. 1 (1974). See also Fisher u. United States.
_U.S._, 96 S. Ct. 1569 (1976).
5. United States v. Mandujano. -U.S.,., 96 S. Ct. 1768
(1976).
6. Kastigar v. United States, 406 U.S. 441 (1972).
7. United States v. Mandujano, supra, See also Weatherford v.
Bursey. __U.S._, 45 U.S.L.W. 4154 (Feb. 22, 1977).
8. Letter of W. Vincent Rakestraw, Assistant Attorney General,
Department of Justice, to Hon. Peter W. Rodino, Jr., Chairman
Ilouse Judiciary Committee, Hearings, pp. 74, 75.
9. Ibid, p. 74.
10. The following history is drawn from the "Testimony of John
Anthony Scott, Legal Historian and Lecturer in Law, Rutgers
University School of Law, Newark, New Jersey, before the House
Judiciary Committee, Subcommittee on Immigration. Citizenship
and International Law, March 16, 1977." Page references are to the
typewritten testimony which will be printed by the subcommittee at
the conclusion of its hearings.
11. Scott, p. 7.
12. Scott, p. 12.
13. Scott, p. 14.
14. Scott, p. 31. This was a toast frequently given by patriots in
colonial America.
15. Scott, p. 30.
16. Rutherford, Livingston (ed.) John Peter Zenger: His Press,
His Trial (New York, 190.1) pp. 118=119, cited in Scott, p. 30.
17. Scott, pp. iii
18. Detailed analysis of the proposed reforms is available in the
Testimony of the Center for Constitutional Rights, which will also
be printed by the subcommittee at the conclusion of the hearings.
19. 408 U.S. 665 (1972).
20. In re Scott, No. 4641 (M.D. Pa. 1975).
21. Translated from Spanish, the initials "FALN" stand for "Na-
tional Liberation Armed Forces."
21 In re Torres, No. 76 Misc. 11-188, (S.D.N.Y., 1976)
23. In re Maury, 533 F.2d 727 (1st Cir. 1976).
24. United States v. Mandajano, supra.
25. H.R. 94, ?330A provides:
(c) Such counsel shall be allowed to be present in the grand jury
room only during the questioning of the witness and shall be al-
lowed to advise the witness. Such counsel shall not be permitted to
address the grand jurors or otherwise take part in proceedings
before the grand jury.
(d) The court shall have the power to remove such attorneys and
order the witness to obtain new counsel, when it finds that the at-
torney has violated subsection (c) of this section or that such
removal and replacement is necessary to insure that the activities of
a grand jury are not unduly delayed or impeded.
26. Testimony of Richard E. Gerstein before the Subcommittee
on Immigration, Citizenship and International Law. Report of Pro-
ceedings, Hearing on H.R. 94, March 17, 1977, p. 89.
27. 161 U.S. 591 (1896).
28. See e.g., Kastigar v. U.S., supra; U.S. v. Dionisio, supra;
U.S. v. Mara, supra; and Fisher v. U.S., supra.
29. "Use" immunity applies only to evidence in the testimony of
the witness him/herself; the witness may still be prosecuted for the
alleged crime under investigation. "Transactional" immunity, by
contrast, guarantees that a witness cannot be prosecuted for any-
thing related to the transactions about which s/he has testified.
Grand Jury Reform Bills
Under consideration before the 95th Congress
I I.R. 3736
Conyers
Witness consent required for grant of immunity X
Transactional rather than use immunity required X
Strict guidelines for forced immunity established
Counsel permitted to accompany witness before
grand jury
Subpoena must contain notice of rights, subject
matter and statutes involved, etc,
Contempt confinement limited to six months, not
to be repeated for refusal to testify on same
matters, and guidelines established for place of
contempt confinement .
H.R.94 H.R.2620 H.R.844 H.R.406
Eilberg Patterson Drinan Holtzman
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 The Carter Devolution on the CIA:
A Chronology
On February 14, 1977, President Carter learned that
the Washington Post planned to reveal a secret CIA op-
eration involving the payment of millions of dollars to
King Hussein of Jordan. Last summer, CIA officials who
viewed the payments as "bribes" reported the program to
the Intelligence Oversight Board established by President
Ford to review the legality and propriety of CIA opera-
tions. The Board determined that the payments, amount-
ing to $750,000 in 1976, were "improper," (or improp-
erly withheld from President Ford, it is not clear
which") and reported the matter to President Ford. The
President took no action.
Apparently this was the first President Carter had
heard of the twenty-year secret program. According to
informed sources, the President was "distressed." His re-
sponse to the revelation offers the first concrete indica-
tion-outside of the aborted Sorensen nomination--of the
new Administration's views on matters of secrecy,
"leaks," and the use of the CIA as an instrument of se-
cret foreign policy.
Campaign Positions
During his presidential campaign, candidate Jimmy
On Secrecy: If elected, Carter promised to curtail "ex-
cessive secrecy" in government. His running mate, Walter
Mondale, underscored the point. "Abuse thrives on se-
crecy," he said. "Knowledge is the key to control." In a
campaign position paper, "Jimmy Carter on the CIA,"
Carter warned that:
We must never again keep secret the evolution of our
foreign policy from the Congress and the American
people. They should never again be misled about our
options, commitments, our progress or our failures.
In his Inaugural Address, he said:
We will not behave in foreign places so as to violate
our rules and standards here at home, for we know
that this trust which our nation earns is essential to
our strength.
On Candor: If these standards were violated or the
laws broken, Jimmy Carter promised to bring the matter
before the American public:
If the CIA ever makes a mistake, I'll be the one, as
President, to call a press conference, and I'll tell you
and the American people, this is what happened,
these are the people who violated the law, this is the
punishment I recommend, this is the corrective action
that needs to he taken, and I promise you it won't
happen again.
Carter spoke often about the "shocking revelations" con- On Accountability: Carter promised that he would ac-
cerning the CIA and the need for concrete reforms. Here cept "personal responsibility" for CIA operations to in-
is some of what candidates Carter and Mondale said: sure that the agency "obeyed the law." His running mate
stated that the Administration would:
press for a specific legislative charter to spell out the
powers o the FBI, CIA and other intelli ence agen-
*See Osborne, John, "White House Watch: Car .LCr Oversi
16
The New Republic, March ,pfa, ved FOP elease'04/10/28 c ~ks~ a `~e~f~ ft r~Q `t aQoers.
 10 FIRST PRINCIPLES; NATIONAL SECURITY AND CIVIL LIBERTIES
ease : CIA-RDP88-01314R000100530007-0
The Administration's Positions
But here, by comparison, is how Jimmy Carter, the
President, has dealt with the revelation of the secret pay-
ments to King Hussein.
February 16: Carter summons Washington Post Execu-
tive Editor Ben Bradlee and reporter Bob Woodward to
the White House. While not stating that the revelation
of the Hussein payments would affect "national security,"
Carter makes it clear that he is "distressed" about the
impact of the story on on-going Middle East negotiations
and that he prefers that the story be delayed or not
published. He also indicates that the payments have been
stopped. The President wants to be notified prior to
publication. Several hours after the meeting, the Post in-
forms the President that the story will appear on Friday.
February 18: The Post prints the story. White House
Press Secretary Jody Powell states that it is Administra-
tion policy not to confirm or deny the story but that an
intensive review is underway.
It is the Administration's policy not to comment on-
either to confirm or deny-any stories concerning al-
leged covert activities. By definition any comment
would be a contradiction in terms since the operation
in question would no longer be covert or secret.
You should know, however, that almost from the first
day of the Administration, senior officials ... have
been engaged through the National Security Council
in an intensive and comprehensive review of all sensi-
tive foreign intelligence activities.
This review is nearly completed, and, on the basis of
its findings, the President will make basic decisions
concerning the future of such activities, the purpose
of which is to protect the security of our country and
its people. The objective of the review is to make
certain that activities are proper, to insure full com-
pliance with oversight procedures by law, and that
what can be done openly is not done secretly.
The Press Secretary sees no inconsistency between this
policy and the Administration's promise to reveal "mis-
takes" to the public. Privately Administration sources in-
dicate that the payments have been stopped.
On this same day, Admiral Stansfield Turner, Car-
ter's designate for Director of the Central Intelligence
Agency, testifies at his confirmation hearing. While as-
suring the Senate Intelligence Committee that the CIA
would conduct operations within the law and in con-
formity with American values, Turner stresses the need
for a tighter reign on security. "Covert operations must
be handled discreetly," he warns. "People's lives are at
stake." fie states that he favors one committee in each
house to have access to intelligence secrets. Turning to
the issue of reform, he indicates that President Carter is
satisfied that no new laws are necessary to govern the CIA.
"The President,"' says Turner,
wants to be ensured that the Foreign intelligence work
of all agencies of the Government is being conducted
strictly in accordance with law and American values.
The President indicated that while he believes that
these objectives are encompassed by existing law and
executive directives, he intends to work closely with
the Congress on any revisions to law and to executive
orders as may be desirable to assist the Director of
Central Intelligence (sic( fulfilling those charges.
Senator Inouye asks if an official secrets act may be
one law that is necessary. Pointing out that even though
officials take an oath not to divulge secrets,
we know that in violation of this oath, articles have
been written, books have been written, names have
been printed, operations have been described. Do you
believe that criminal sanctions should be provided for
by law to punish those who violate this oath?
Turner's response is "Yes." The Director-designate is in-
vited by the Committee to draft such a law for consider-
ation by the Congress. Carter and Mondale later express
reservations about "criminal" penalties to protect against
leaks and state they prefer civil remedies instead.
February 23: President Carter calls a press conference
and responds to questions about the Hussein payments.
He reiterates that "1 have adopted a policy, which I am
not going to leave, of not commenting directly on any
specific CIA activity ..." However, he has "reviewed
the more controversial revelations that have been publi-
cized in the last few days, some quite erroneous, some
with some degree of accuracy. ... I have found nothing
illegal or improper." In emphasizing the dangers of dis-
closure, he characterizes the operations in this way:
It can be extremely damaging to our relationship with
other nations, to the potential security of our country
even in peacetime, for these kinds of operations which
are legitimate and proper to be revealed.
He again expresses concern "about the number of people
now who have access to this kind of information" and
reports that he has been working with the congressional
leaders "to try and reduce the overall number of people
who have access to the sources of information."
February 24: Appearing at the State Department, Car-
ter returns to the subject of access to secret information:
I was shocked when I took office to learn about the
number of different people who had access to highly
secret, sensitive information on which the security of
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February 22: President Carter meets with congressional
leaders over the Hussein matter. Reportedly, he tells
them that the action by the Washington Post was "ir-
responsible." He voices grave concern over the number
of persons in the Administration and in Congress with
access to intelligence secrets. He reveals that he has cut
the number of White House officials with access from 40
to 5 and requests the leadership to work with him to
cut down the number of congressional committees with
access to sensitive information from 7 to 1. Senator
Daniel Inouye, Chairman of the Senate Intelligence Com-
mittee, tries to assuage the President's fear of "leaks" by
indicating that members of his Committee are being
monitored by the FBI.
 Approved For Release 2004/10/28 : CIA-RDP88-01314R000100530007-0
the nation depends. There are 75 people on Capitol
Hill who have access to this very sensitive material.
Now the President favors the creation of a joint corn-
mittee in the Congress.
I have hopes ... that we can have one joint congres-
sional committee with a limited membership to whom
we can reveal what is going on in its entirety. .. .
So, we will have a key group in Congress---very
small-myself, the Intelligence Oversight Board, .. .
the Attorney General, and let that be it. ... We are
now in the position where some of our key intelli-
gence sources are becoming reluctant to continue their
relationship with us because of the danger of their be-
ing exposed in the future.
Asked to comment on the Freedom of Information Act,
Carter says that while he favors such laws, he admits
that the volume of requests by citizens for information is
'"a problem" and "a burden." He hopes that citizens can
be persuaded to keep their requests to a minimum; that
supporters of the legislation will not bring frivolous test
cases just to see that the act works; and that fewer re-
quests will be made if people trust the government
again.
February 27: Secretary of State Cyrus Vance appears
on Face the Nation and defends the secret payments as
"appropriate."
The purposes are common purposes. The actions
taken are in the interests of the. country involved as
well as the United States. In these cases that have
been referred to the best of my knowledge, there was
nothing improper or illegal, as the President has
pointed out. These kinds of things can not be done in
the glare of public publicity and therefore my answer
to your question is yes, 1 do believe it appropriate.
In an interview in the Washington Star, Vice-President
Walter Mondale defends Carter's policy of not comment-
ing on specific CIA stories and his call for a reduction
in the number of congressional committees with access to
secret intelligence. His answer to two questions are
worth reporting:
Q: Wouldn't you scream bloody murder if, as a sen-
ator, you were denied access to that material?
A: If I weren't on the appropriate committee, I might
have .. .
Q: The President seems to think that he can say that
he knows what's going on and that Brezezinski knows
what's going on, that Inouye knows what is going
on-that is enough to satisfy the public. Do you
think that's true?
A: I believe it is and I believe it is essential if the
public feels different to make that case. M
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 In The
News
ARMY/GERM WARFARE. Army
Secretary Clifford Alexander re-
leased a 2-volume report on 239
"open air` biological warfare ex-
periments from 1949-1969. Tests in-
cluded mock attack in New York
City's subways. The report lists
suspicions of resulting illnesses and
deaths among laboratory workers.
In addition, Senator Kennedy re-
leased a summary of a separate
CIA report showing that OSS (Of-
fice of Strategic Services) had used
germ warfare against Nazi Ger-
many. (New York Times, 3/9/77,
p. 1; Washington Post, 3/9/77, p.
1)
CARTER ADMINISTRATION/CI-
VIL PENALTIES FOR LEAKS.
Both Carter and Mondale have an-
nounced they are against criminal
penalties for those who leak classi-
fied information. Carter's statement
that he hoped disclosures could be
prevented "rather than trying to
control that problem by the im-
position of legal or criminal penal-
ties" conflicts with the position of
his new CIA Director, Adm. Stans-
field Turner, (New York Times,
3/10/77, p. 12)
would be undertaken "to determine
whether or not prosecution should
ensue." (New York Times, 3/21/77,
p. 7; Civiletti letter to Melvin
Wulf, 3118/77, on file at CNSS)
CIA/CHILE. At the UN Human
Rights Commission in Geneva, U.S.
representative Brady Tyson ex-
pressed ""profoundest regrets for the
role ... played in the subversion
of the previous democratically
elected Chilean Government." The
remark was immediately repudiated
by the Carter administration, which
called the remarks unauthorized,
and recalled Tyson back to Wash-
ington for consultation- (New York
Times, 3/9/77, p. 1, New York
Times 3/10/77, p. 13)
CIA/CORPORATE PAY OFFS. Ac-
cording to government sources, the
CIA knew about and probably en-
couraged the under-the table cash
payments from American corpora-
tions to political leaders overseas,
such as Lockheed's $7 million pay-
ments to Yoshio Kodama of Japan
as its military aircraft agent. Ko-
dama also had covert associations
with the CIA. (Wall Street Journal,
3/1/77, p. 2)
CHILEAN JUNTA/U.S. DRUG EN-
FORCEMENT AGENCY. Apparent-
ly at the behest of the U.S. DFA,
Jorge Dabed-Sumar, a wealthy
Chilean businessman, was arrested
and tortured by Chilean police in
Oct. 1973 on charges of selling
drugs. After being acquitted by
Chilean courts he was apparently
kidnapped by the Drug Enforce-
ment Agency, which lacked a legal
basis for extradition, Convicted in
a U.S. court for conspiracy to im-
port cocaine, Dabed was released
from jail after nearly 2 years and
charged with being an illegal alien.
(Chicago Daily News, 3/12/77.
p. 3)
CIA/AGEE. The Justice Dept- has
told Philip Agee, author of CIA
Diary, that he will not be prose-
cuted for espionage if he returns to
the U.S. CIA's reaction to the Jus-
tice Department's decision was one
of dismay- "It (the decision] rein-
forces our argument that we don't
have laws to prevent people from
disclosing classified information."
"I lowever," the justice Dept. wrote
to an Agee attorney, if addi-
tional information came to light a
further investigation of Mr. Agee
Approved For Release 2004/10/28
CIA/FOIA. Effective as of March
1, 1977, the CIA has agreed to
maintain an index of its disposition
of requests for waiving of fees for
release of documents which, it is
asserted, would benefit the general
public. (Savige letter of Mar. 3,
1977)
CIA/NEW DEPUTY. The CIA an-
nounced that Professor Robert
Bowie of Harvard University has
been named the Agency's Deputy
for National Intelligence, where he
will be responsible for CIA intelli-
gence estimates. (New York Times.
3/31/77, p. Al)
CIA/PAYMENTS TO FOREIGN
LEADERS. Although many foreign
leaders who were named last
month as recipients of secret CIA
funds have issued denials, sources
within the government confirm the
majority of the allegations. Sec. of
State Vance explained that the pay-
ments could not be compared to
Korean bribes of U.S. Congress-
persons because they had been
"government to government" assist-
ance, not meant to line the pockets
of friendly foreign leaders. (New
York Times. 3/1177. p. 8)
CIA/UNIVERSITIES. The discovery
that Dr. Myron Rush, Cornell pro-
fessor of Soviet Studies, is present-
ly scholar in residence at CIA
headquarters has led to charges by
students there that faculty involve-
ment with the CIA "undermines
the trust necessary for the survival
of the academic community and
basic academic freedoms." The pro-
test against Rush comes at a time
when colleges and universities
across the country are re-evaluating
their ties to the intelligence com-
munity in light of the Church
Committee's report of widespread
Agency links to the academic com-
munity. (New York Times,
3/20/77)
CONGRESSIONAL INVESTIGA-
TION/KISSINGER BLACKMAIL?
11 members of the former House
Intelligence Committee have re-
quested the justice Dept. look into
allegations made by columnist Wil-
liam Safire that former Sec. of
State Kissinger may have tried to
deter the Committee from probing
deeply into matters embarrassing to
both Kissinger and former CIA di-
rector Richard Helms. According to
Safire, Kissinger learned of the
Korean payments to members of
Congress by 1974, and used the
threat of disclosure to dampen cer-
tain investigations. (New York
Times, 3/18177, p. 11)
FBI/INFORMERS. According to
censored documents provided to
Rep. Patricia Schroeder (D. Colo.)
by the FBI, Timothy Redfearn, an
FBI informer, reported on a 1972
party at the Denver home of the
Congresswoman. (Washington,
Post. 3/12/77, p. AS)
FBI/OPPENHEIMER SURVEIL-
LANCE. Documents released
under FOIA to the Chicago Sun-
Times describe the physical and
electronic surveillance by the FBI
of J. Robert Oppenheimer, "father
of the atomic bomb." The Bureau
spied on Oppenheimer from 1941
through at least 1954 and at one
time had 3 cars cruising the roads
around Princeton, NJ to tail the
scientist when he left home. (Chi-
cago Sun-Times, 3/13/77, p. 3)
FBI/PROSECUTION OF AGENTS
FOR BURGLARIES. According to
sources in the justice Department.
the Civil Rights Division has re-
commended that Attorney General
Bell seek indictments of low-level
 APRIL 1977
Approved-FurReiease 2004110128: - 88- O0W0O07``0
personnel involved in illegal bur-
glaries as a stepping-stone to pos-
sible further prosecution of about 6
present and former FBI executives.
(Washington Post, 3/31/77, Al)
FBI'SWP BURGLARIES. Timothy
Redfearn, an FBI informer serving
10 years in a Colorado state prison
for burglarizing SWP offices in
Denver, has told the Justice De-
partment that the FBI paid him
54,100 in exchange for his refusal
to testify before a Denver County
grand jury investigating the case.
According to the FBI, the 2 agents
named by Redfearn deny the
charges. (Washington Post,
2/28/77, p. C4)
HOUSE ASSASSINATION COM-
MITTEE. Following the recent
resignations of Chairman Henry
Gonzalez and Chief Counsel Rich-
ard Sprague, the I-louse has voted
to continue the investigation into
the murders of Pres. Kennedy and
Rev. Martin Luther King, Jr. Gon-
zalez has been replaced by Louis
Stokes (D-Ohio). (Washington Post,
3/31/77, p. Al)
HUMAN RIGHTS IN USSR/CIA
CONNECTIONS? The Soviet gov-
ernment newspaper Izvestia accused
American diplomats in Moscow of
being CIA agents who were recruit-
ing Soviet dissidents for espionage
purposes. Among those dissidents
accused of giving information to
the CIA were members of an un-
official group monitoring Soviet
violations of human rights accord-
ing to the 1975 Helsinki agree-
ments. (New York Times, 3/5/77,
p. 3)
GRAND JURIES. Two women em-
ployed by the National Commis-
sion on Hispanic Affairs of the
Episcopal Church in New York
went to jail rather than testify be-
fore a grand jury investigating a
series of FALN bombings in New
York. They allege that the grand
jury probe is intended to under-
mine the church's support of Puer-
to Rican independence. See p. 7 of
this issue of FIRST PRINCIPLES.
(Washington Post, 3/22/77, p. A3)
JUSTICE DEPARTMENT/DEFENSE
OF GOVERNMENT OFFICIALS.
At least 60 present and former
government officials are being
stied in civil courts for spying on
Americans. To avoid a conflict
of interest, the Justice Dept. has
already paid nearly $800,000 to
private attorneys defending some
45 officials and has requested $4.8
million from Congress to hire pri-
vate attorneys to continue their de-
fense. (New York Times, 3/27/77,
p. E5)
KENNEDY ASSASSINATION. San-
tos Trafficante, underworld leader
purportedly named as enlisted by
the CIA to kill Fidel Castro, was
called before the House Committee
on Assassinations, but pleaded the
Fifth Amendment to all questions,
including whether he had advance
information on the Kennedy assas-
sination and whether he was visit-
ed by Jack Ruby while still in pris-
on in Cuba. (New York Times,
3/17/77, p. 23)
KING ASSASSINATION BOOK.
In response to an inquiry concern-
ing possible CIA activity involving
Mark Lane's forthcoming book on
the assassination of Martin Luther
King, Jr., entitled Code Name Zor-
ro, the CIA General Counsel stated
in a Mar. 29, 1977 letter to Lane's
ACLU attorneys that the Agency
does not intend to interfere with
the book's publication, promo-
tion, or distribution. FBI Director
Kelley made a similar statement in
a letter of Mar. 30, 1977.
LOCAL RED SQUADS. The ter-
rorist activities by the Hanafi Mus-
lims in Washington have given the
Metropolitan Police Dept.'s advo-
cates of surveillance their newest
excuse to continue such spying.
They maintain that limiting surveiI-
lance to investigating crimes is not
a sufficient standard on which to
base their activities. (Washington
Post, 3/11/77, p. A15)
LOCAL RED SQUADS. Mar. 5-
The Mississippi State Sovereignty:
Commission, which has been
running COINTELPRO-type opera-
tions in Mississippi since 1.956, and
has boasted that between 1964 and
1967 alone it accumulated files
containing the names of 10,000 in-
dividuals and about 270 organiza-
tions was abolished by the state
legislature. (Washington Post.
3/6/77, p. A2)
SECRECY/ ADMINISTRATION PO-
LICY. Vice President Mondale, dis-
agreeing with CIA Director Turner,
says he would support some form
of civil remedies for disclosure of
"national security secrets", but is
personally opposed to criminal pen-
alties for such disclosure. (Wash-
ington Post, 3/5/77, p. Al)
SURVEILLANCE/OFFICIAL AT-
TITUDE. General George Brown,
Chairman of the Joint Chiefs of
Staff is quoted as recently saying
that "If any citizen of this country
is so concerned about his mail be-
ing read or is concerned about his
presence` in a meeting being noted.
I'd say we ought to read his mail
and we ought to know what the
hell he has done." (Washington
Post, 3/27/77, p. A2)
DAMAGE ACTION. Founding
Church of Scientology v. Kelley,
No. 77-0175 (D.D.C., Jan. 31,
1977, Gesell, J.). The Church of
Scientology has joined the list of
organizations filing for damages
and injunctive relief against the
federal intelligence-agencies.
FOIA/CIA. Baker v. CIA, 425 F.
Supp. 633 (D.D.C. 1977). In a case
involving a request by a former
U.S.C. ?403g applied and granted
the government's motion for sum-
mary judgment.
FOIA/CIA. Ray v. Bush, No.
76-0903 (D.D.C., Jan. 25, 1977).
Relying on Weissman v. CIA, No.
76-1566 (D.C. Cir., Jan. 6, 1977),
the District Court granted a gov-
ernment motion for summary judg-
ment for documents withheld from
a personal file.
TION. Weissman v. CIA, No.
76-1566 (D.C. Cir. Apr. 4, 1977).
The Court of Appeals for the Dis-
trict of Columbia Circuit has
amended the opinion in Weissman
v. CIA, No. 75-1583 (D.D.C. Jan..
6, 1976), which now makes clear
that claims of exemption under
(b)(1), like all other FOIA exemp-
tions, are subject to de novo re-
view in the district court. The
court also revised its comment on
CIA employee for CIA personnel situations in which in camera. re-
records, the court held thaApproved F or ReI+ E1Q614di a8 : CIA-RDP8a1nai4,ROiQOIt 3QO07-0
In The
News
(eon't.
In The
Courts
 FIRST PRINCIPLES. NATIONAL SECURITY AND CIVIL LIBERTIES
Approved or a ease 2004110128 : - - -
In The Courts
(Continued)
such review should be undertaken
where the record is vague or where
the agency claims are too sweeping
or suggest bad faith.
PRIOR RESTRALNT. In r-e Halkin,
No. 77-1313, Mar. 31. 1977. On
behalf of the attorneys and plain-
tiffs in Halkins v. Helms, No.
75-1773 (D.D.C., Feb. 14, 1977), a
suit relating to the CIA CHAOS
Project, the ACLU filed a petition
In The
Literature
The Night Watch: 25 Years Of Pe-
culiar Service, by David Atlee
Phillips (Antheneum, 1977). Direc-
tor of the CIA Western Hemis-
phere Division during the time of
Allende's overthrow in Chile in
1973, Phillips gives a mostly posi-
tive account of "the Company,"
but the omnipresence of CIA oper-
ations emerges as an unintended
theme for skeptics to ponder.
"Carter's Oversight," by John Os-
borne, The New Republic, Mar.
19, 1977, p. 8. Discusses the func-
tioning of the Intelligence Over-
sight Board (the IOB, set up by
Ford to watchdog the intelligence
agencies-see FIRST PRINCIPLES,
Mar. 1976) in light of CIA pay-
ments to Hussein and other leaders
and, specifically, what degree of
access Congress should have to the
IOB's reports on such activities.
"The Grand Juries: An American
Inquisition," by Judy Mead, Center
for National Security Studies Re-
print No. 105. A reprint of a
chapter appearing in The Lawless
State" (Penguin, 1976) which covers
the way that grand jury powers
have been turned into a judicially
sanctioned intelligence agency.
Available for 50t from CNSS, 122
for mandamus asking the Court of
Appeals to vacate a prior restraint
order on release and comment on
CIA documents provided to the
plaintiffs.
RED SQUADS/INFILTRATION OF
LEGAL TEAM. Alliance to End
Repression V. Rochford, No.
76-2293 (7th Cir. Mar, 1, 1977),
appealing No. 74 C 3268, (N.D.
I11.) Order of Nov. 10, 1976). A
three-judge panel upheld the order
of judge Alfred Y. Kirkland which
enjoined the defendants from infil-
trating the Alliance's legal team to
gather information and from using
"flow Can lie Never Lie To Us, If
'Dirty Tricks' Boys Go On the
Loose?" by John Marks, The
Washington Star, February 20,
1977. John Marks of CNSS out-
lines steps that the new CIA direc-
tor should take to insure that CIA
activities are lawful.
'The Incident," by Taylor Branch
and John Rothchild, Esquire, Mar.
1977, p. 55. Account of 2 American
journalists in Venezuela trying to
sort out the ongoing interrelation-
ships of CIA, FBI, State, Cuban
terrorists, and the Venezuelan secret
service.
"Lame Duck Chief Kelley Is Re-
forming Tomorrow's FBI." by John
M. Goshko, Washington Post,
3/27/77, p. A3. According to
Goshko, Clarence Kelley has been
reforming the FBI in ways that
have largely escaped public notice.
Goshko drew this conclusion in
spite of the fact that no one had
yet been indicted or prosecuted for
burglaries, wiretaps, bugs, and
COINTELPRO operations, that Kel-
ley did not know that burglaries
were continuing, and that he did
not replace high-ranking officials
from Hoover's regime until forced
to.
any information so gathered. The
fact that the defendants asserted
that there were "no present plans
to initiate any surveillance" did not
make the injunction an abuse of
discretion.
SURVEILLANCE AND FOIA
SUITS. National Lawyers Guild v.
Attorney General, No. 77 Civ 999
(S.D.N.Y. March 1, 1977) (Com-
plaint). The National Lawyers
Guild filed a class action suit
against the federal intelligence agen-
cies which 1) alleges surveillance
and harassment and seeks declara-
tory and injunctive relief, and 2)
March 1977. p. 36. Denounced
variously as a CIA/FBI informer
and a KGB agent, one-time CBS
correspondent and ABC bureau
chief Sam Jaffe has been trying to
track down sources that pinned the
labels on him.
"Secrecy As Usual?" by Anthony
Lewis, New York Times, Mar. 17,
1977. The Carter Justice Depart-
ment is currently contesting more
than 600 lawsuits under Freedom
of Information Act; after describ-
ing some examples. Lewis concludes
that the Carter administration
"could take a significant step
toward open government by seeing
to it that pointless resistance to
public information" be ended as a
matter of policy.
The Southern Connection: Recom-
mendations For A New Approach
To Inter-American Relations, In-
stitute For Policy Studies, Feb. 28,
1977, 25 pp. The report recom-
mends changes in U.S. policy in
Latin America, including a gradual
phase-out of U.S. foreign military
operations, a mandatory policy on
human rights, and acceptance of
socialist governments. Copies avail-
able from IPS, 1901 Q Street
N.W., Washington, D.C. 20009.
seeks access under the Freedom of
Information Act to files on the
Guild.
Halperin v. Kissinger, No. 1187-73
(Dec. 16, 1976) is reported at 424
F. Supp. 838, (D. D-C. 1976).
Open America v. Watergate Special
Prosecution Force, No. 76-1371
(July 7, 1976) is reported at 547 F.
2d 605 (D.C. Cir. 1976).
Phillippi v. CIA. No. 76-1004
(Nov. 16, 1976) is reported at 546
F. 2d 1009 (D.C. Cir. 1976).
formers," by Geoffrey R. Stone,
American Bar Foi.ndation Research
Journal 1197 (1976).
"Senate Bill No. 1 and the Free-
dom of Information Act: Do They
Conflict?" by J. C. Goodale, 28
Admin. L. Rev. 347 (Summer
1976).
Official Accountability Act, Hear-
ing Before the Subcommittee on
Courts, Civil Liberties, and the
Administration of Justice of the
Committee on the Judiciary, House
of Representatives, 94th Cong., 2nd
Sess., on H.R. 8388. Testimony of
Robert Borosage, Center for Na-
tional Security Studies; Marcus
Raskin, Institute for Policy Studies;
and others on a bill which would
effectively limit the abuses of exec-
utive discretion in international af-
fairs by enforcing international
laws and standards.
"Disorders and Terrorism: Report
of the Task Force on Disorders
and Terrorism," by the National
Advisory Committee on Criminal
Justice Standards and Goals, 611
pp., Mar. 2, 1977. Among other
things, the report proposed that the
FBI not be required to prove that
persons are disposed to violence
before they can be placed under
surveillance. Available from De-
Scope of the Fourth Amend- partment of justice, LEAH, Wash-
Maryland Ave., NE, Washington, I fe and The New Black- m nt? Privac and the Police Use in ton, D.C. 20531. GPO
DC 20002. ~ApprovecU C 1~j; Sgr3QQ4 X,Z8 : 0541 W, ,{# OI 0053 ~ baa224-8.
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it was published, refused to discuss what actually hap-
pened, and then wrote letters to some of those accused
foreign leaders--which in some cases may violate his
pledge to always tell the truth to the American people.
The President then went to the State Department and
said that people should stop using the FOIA out of "idle
curiosity." Once people see that we can he trusted, he
says, they will stop demanding so much information,
And then he said that the key to preventing leaks is not
to reduce the amount kept secret but to narrow the circle
of those who know.
The Justice Department has continued to defend se-
crecy and surveillance in litigation brought by the Pro-
ject on National Security and Civil Liberties. The "new"
Justice Department sought and obtained an injunction
which prevents us from releasing or discussing a set of
documents from our lawsuit against the CHAOS
program which show that illegal activities were contem-
plated as part of the program. In other cases efforts are
made as usual to invoke the state secrets privilege in
order to prevent litigation of constitutional claims and
release of documents.
It is clear that there is not yet a center of gravity on
this set of issues. The great danger is that there never
will be. It is easy, as all of the senior and most of the
junior people are discovering, to get caught up in the cri-
sis of the day. Usually, one turns to intelligence issues
only in a time ofcrisis, when the temptation is to cut
losses, to minimize the harm.
Jimmy Carter talked of intelligence agency abuses dur-
ing the campaign, but it has not found its way onto the
agenda of issues currently under intense review for pro-
gy policy, inflation, even human rights are on this
agenda, but intelligence agency abuse is not. Nor. is it
easy to say why. Some attribute part of the problem to
Zbig Brzezinski, the White I-louse National Security Ad-
visor who is said to be the source of the statements on
the need for more secrecy and no legislation. Part of the
problem is that the new Attorney General, whatever his
views (and there is no reason to think that they are un-
sympathetic), simply has different issues-such as court
reform and sentencing-higher on his own agenda than
intelligence abuses.
And in, contrast to many other areas of government,
the bureaucracy has a complete lack of interest in com-
prehensive legislation or investigation of the past. By
contrast, in HEW there are many who are ready to de-
sign welfare reform, and everywhere inside the bureau-
cracy there are advocates of a new energy policy. Not so
for the intelligence business.
There will have to be some major new initiative if
Carter is to live up to his campaign promises in this
area. What is needed is strong leadership from the top to
set in motion the mechanism to produce comprehensive
legislation to bring the intelligence agencies under the
Constitution. The logical man to lead such an effort is
the Vice President. As Senator, Mondale was a leading
figure on the Senate Intelligence Committee. He knows
the area well and has the integrity and the intellect to
move through the minefield of conflicting interests.
Rigidity sets in an administration after six months,
and the time to act is now. If they do not establish a
momentum for reform now, our friends inside will
emerge in four or eight years wondering how they could,
posing comprehensive le*oPBv 411 i Wdf&sege'2'004/' `d EP9clC yPD `I r3'1 qtT0ffO7-0
Paint
Of View
(continued from
page I6)
 First Principles Approved For Release 2004110/28: IA-RDPB8 01314R000.1Q0530007-
is published by the Maryland venue, as tngton, . 20002
Project on National [phone]
Security and Civil
Liberties, which is
sponsored by the
American Civil Liberties
Union Foundation and the
Center for National
Security Studies of the
Fund for peace.
? 1977 by The Project
on National Security
and Civil Liberties
Morton H. Halperin, Project Director
Christine M. Marwick, Editor
Florence M. Oliver, Administrative Assistant
Mark Lynch, Project Counsel
Jane Cumberlege, Legal Assistant
Susan Kaplan, Current Events Editor
Christy Macy, Current Events Editor
Jerry J. Berman, Book Review Editor
Heidi Pasichow, Literature Editor
Mary Singleton, Editorial Assistant
Perhaps it is a universal truth that the loss of liberty at home is to
be charged to provisions against danger, real or pretended, from
abroad.
JAMES MADISON TO THOMAS JEFFERSON, MAY 13.1798
Point The Carter Administration:
of View In the Mood for Reform?
`S~pre l?
off.
Typeseu,ng by
Unicorn Graphics.
Silver Spring. Md.
As we enter the third month of the Carter Administra-
tion there is a mood of uncertainty for those of us still
on the outside and concerned about restoring constitu-
tional controls on the intelligence agencies.
It remains very unclear what the center of gravity of
this new administration will be-signs are everywhere
but they point in very different directions. It is possible
to prove that nothing has changed, that things will go
on as before. And it is equally possible to believe that
everything has changed, that we are governed by a
group of men and women with a deep commitment to
civil liberties. And it is possible that it is too soon to
tell just what will happen.
Let's start with the optimists' view of the new mood.
The clearest sign of change is the people. When an
ACLU delegation called first on the Attorney General
and later on White House issues coordinator Stu Eisen-
stadt, we were surrounded by old friends who were the
staff assistants of Bell and Eisenstadt and who used to
toil with us from the outside on these issues. The very
fact of access is new. Where Levi refused even to meet
Non-Profit Org.
.
U. S. Postage
PAID
Permit No. 45490
Washington, D.C.
with us on the national security wiretap bill or the do-
mestic intelligence guidelines, there is now ready access.
Meetings at high levels are arranged and at lower levels
there is a steady flow of information and ideas.
There are even a few tangible acts. Most notable is the
letter to Mel Wulf, Philip Agee's lawyer, which indicated
that Agee will not be indicted for what is written in his
book on life in the CIA. Agee will now be coming back
to lecture and that is certainly a victory for the First
Amendment.
The case for the pessimists is longer. The President
failed to give Sorenson the support he needed and then
appointed as CIA director a man with no record of sen-
sitivity to civil liberties issues. Admiral Turner at his
confirmation hearing reported the judgment of the Car-
ter administration that no legislation is now needed to
control the intelligence agencies and he promised to sub-
mit legislation making it a crime for officials to leak in-
formation related to intelligence sources and methods.
Carter tried to supress the story about intelligence
payments to foreign leaders, denounced the story when
Approved For Release 2004/10/28 : CIA-RDP88-01314R000100530007-0 - (continued on p. 15)