Frightening. But absolutely fictional. There’s nothing but hyperbole in the scenario above.
If you refuse to answer the grand jury’s questions, you may be found in contempt and locked up for the remainder of the grand jury investigation (up to 18 months). And while they might be witnesses, I doubt it, given the scope of the subpoena (as referenced by the Common Dreams article posted earlier):
It seems pretty clear that the grand jury is targeting those involved with the conference.
One thing has occurred to me – what, exactly, can the grand jury stick on them? I doubt any felonies were committed. The protesters involved in the action agreed to a code of nonviolence:
(source: http://www.no-nukes.org/viapacis/nov15-16action.html )
It is probable that the bigger effect would be to create a chilling effect on free speech in the US, which is already being eroded to nothing as we speak. As it is now, it is risky business to attend large-scale protests. As seen in the anti-FTAA demonstrations in Miami, police are resorting to increasingly brutal measures to quash dissent. Before Miami, law enforcement officers taking photos and videos of protesters for use in their databanks was a common practice. Now this FBI terrorism task force is seeking to intimidate a bunch of students protesting peacefully and lawfully.
Somebody stop the inferno, please. I want to get off.
Yes, as long as you are not asserting a privilege. If the witness is the target of the investigation, as you suggest below, then it seems to me the witness may assert a Fifth Amendment privilege. Refusing to answer question on those grounds, assuming a basis exists, is NOT punishable by contempt. Is it?
If you cannot assert a privilege, AND the grand jury’s question do not go to criminal activity, then you may move to quash, and stay your testimony until your motion to quash is heard.
So what’s the problem?
- Rick
Bricker, I think this post in the thread answers your question:
If they plead the Fifth, they still have to testify. And that testimony, while it can’t be used against them, can be used against others.
That’s a rather small thing to be bringing out a grand jury for, isn’t it? Plus, even if that’s true, it still doesn’t explain why they subpoenaed everyone’s records instead of just the accused’s records. Not to mention that a person scaling a security fence is hardly a terrorist. This stinks of BS, methinks.
Of course. That’s true in every single criminal investigation. Why shouldn’t it be true in this one? No one has the right to refuse to testify against someone else, unless a particular privilege is implicated by the testimony.
But wait, I hear you cry - this isn’t a legitimate criminal investigation! There are no crimes being alleged!
If that’s the case, as I have explained twice now, then the appropriate remedy is a motion to quash the subpoena.
What’s wrong with that approach?
It lacks the elegance of having a government in power which has the sense to not sic a grand jury on people who were merely exercising their rights to free speech and assembly.
-BTW, the prosecutors have now delayed the grand jury appearances by a month (see link). I’m certain the feds just want to make certain that everyone has time to refine their memories of the event, and realize what deep shit they’ve landed themselves in with their little “protest.”
How do you know that’s all it is? How are you so certain that there is not a more serious criminal investigation at hand?
When a grand jury is convened, it is presented with facts the prosecutor feels are relevant to a criminal investigation. If there is no criminal investigation, no basis for any finding of probable cause to believe a crime has been committed, then quashing the subpoenas (and any indictments that may arise) should be an easy matter.
Without evidence to the contrary, public officials are presumed to be doing their duty and complying with the law. If you’re alleging that this isn’t happening, the burden is on you to show why this assumption should be made.
Now, grand jury proceedings are secret - and for good reason. Accusations and lines of investigation may not ultimately rise to the level of probable cause, and the grand jury may not return a true bill. If they do not, the target(s) of the investigation are not stigmatized by an accusation that ultimately turned out to be too flimsy to support an indictment.
As I say, though, if there is nothing at all to warrant a good-faith belief that criminal acts occurred, then quashing is not going to be a problem.
You assert that there’s nothing criminal here – merely people exercising their right to protest. The burden’s on you to prove that extraordinary claim. However, your proof is hampered by the secrecy of the proceedings. So I’d say that a reasonable approach is that outlined by the ACLU lawyer quoted in one of the links above: wait and see. If the grand jury’s investigation is without basis, we’ll see motions to quash coming fast and furious. If we don’t see such action, then the reasonable inference is that there was SOMETHING criminal, or something appearing criminal, for the grand jury to investigate.
- Rick
If your goal is more work for lawyers, yeah, that’d be the way to go.
Given the information available, if I was one of thse people I would want a little more going for me than a lawyer although I’d certainly have one.
And that “for ANY reason” is ridiculous. Generalizations that broad just cannot be accepted.
What?!?
The remedy for any criminal trial procedural error is a timely objection, followed by a motion for a new trial, followed by an appeal. Is that overly broad?
Look, the grand jury subpoena is a process. It has rules. If you believe that they are being used incorrectly, there are remedies. In what way is the statement I made too broad? What circumstance does it encompass for which it’s not true?
- Rick
Sure thing. Remind me again about the grand jury investigative process. Wasn’t it the exact process of which the following quip was made? “a good prosecutor could get a grand jury to indict a ham sandwich.” Rep. Henry Hyde (R-IL), former Chairman of the House Judiciary Committee
Having seen a family in my area railroaded into child pornography charges as a result of a photo of breastfeeding I’m afraid I’m not willing to cut the grand jury the kind of slack you seem to be. I do apologize for my mistaken understanding of which point in the procedure this particular case is in. They wouldn’t suffer jail time until an indictment is reached. Damages to reputation and the intimidation have indeed occurred before a motion to quash can be made. Some of the people who were attending/running the meeting(those people about whom the information subpoenaed is about) are speakers and organize these sorts of things as a service. Now their professional reputation has suffered because someone who organized/hosted one of their events is entangled with a federal investigation. This is fairly clearly detrimental to future prospects as well as intimidating for future attendees. At very least it ties up the organizers/presenters for up to 18 months or so while they remain at the beck and call of the grand jury. 18 months they probably would have spent organizing other protests and spreading their political viewpoint.
As to the decision if it was intimidation or a legit investigation, I’m coming down on the “intimidation” side for the moment, primarially for one reason. No crime was even alleged. What in heaven’s name makes it reasonable to launch investigations without even an alleged crime to investigate? I posit that it is eminently reasonable to believe this is an act of intimidation motivated by political goals. Allege a crime and I may change my mind. In the meantime no one should be inconvenienced or possibly damaged by such broad, and shakily-grounded, investigations.
Enjoy,
Steven
I suppose you haven’t heard of the concept of “innocent until proven guilty”. Neither the protestors nor myself have to prove their innocence. But it is up to the prosecutors (and yourself) to prove their guilt. Unfortunately for you, the secrecy of the investigation precludes you from doing that.
But even if the grand jury doesn’t return an indictment, the protestors will, in all probability, be under surveillance for as long as they remain active in politics. Not to mention the fact that the media has already reported that they were under investigation by an FBI terrorism task force. Do you really think that will endear them to future employers? In Iowa?
Every criminal prosecution begins with a formal accusation. This may be as simple as a summons written by a police officer, a prosecutor’s information, or, for felonies, a grand jury indictment. No one is proven guilty prior to a grand jury indictment. You cannot point to me and say, “Ah ha! Innocent until proven guilty!” when the grand jury is in fact the first step towards proving them guilty. “Innocent until proven guilty” simply means that the burden is on the prosecution to prove guilt on each element of the crime beyond a reasonable doubt.
That is NOT the burden at the indictment stage. At this stage, the prosecution must only show probable cause to believe that a crime was committed, and probable cause that the accused is the one who committed the crime.
None of this shifts the burden of proof in our discussion. You, and others, have alleged that there is no crime at all here, merely an exercise of legitimate, First Amendment-protected activities, and the prosecutors are improperly using the grand jury process to intimidate the witnesses.
That accusation is on you to prove. If there were a crime, the process is proceeding exactly as it should. There is a presumption of regularity in the actions of officials. If you accuse them of malfeasance, YOU must show the evidence for that malfeasance.
Mtgman:
Grand jury secrecy laws exist for precisely the reason you complain of:
But it was THEY who announced they had been subpoenaed! The prosecutors correctly refused to comment on the proceedings. They did not announce that anyone had been subpoenaed - that protects a person’s reputation. But if the people being subpoenaed announce it themselves, then they can hardly be heard to complain about the damage to their reputation.
Once an indictment is made, of course, it’s eventually a matter of public record. But the lawyers for the subpoenaed witnesses indicate that they would ask a judge to quash. This means that a judge will review the basis for the subpoena and determine if there is at least a threshhold showing to justify their testimony. If there is not, there will be no testimony and no indictment. And the only damage to anyone’s reputation will be self-inflicted.
- Rick
From [url=http://www.nytimes.com/2004/02/10/national/10PROT.html]this New York Times article
[/quote]
:
It hardly seems necessary to resort to the following to determine whether someone climbed on a fence or trespassed:
It also should be noted that local television and a sergeant of the Des Moines police were specifically invited to the peace forum and that it was open to the public. Seems like a great way to hide a vast terrorist conspiracy.
So what is the need for all these subpoenas, including “detailed information on the lawyers guild and its members, including the names of those who are officers, and guild meeting agendas and annual reports since 2002?” I can’t see any realistic reason except to intimidate.
(source: http://www4.law.cornell.edu/uscode/18/1382.html)
This crime is a Class B misdemeanor, which can carry a fine of up to USD 5000.
-
There is no First Amendment right to illegally enter a military installation.
-
If someone illegally entered or attempted to illegally enter a military installation, a crime was committed.
-
If several people reached an agreement to do this, or to assist one person in such illegal entry, then the acts of planning and agreeing are also crimes.
Does anyone disagree with the foregoing statements?
Maybe some facts would help this discussion, although every body knows it is much more fun to go off half cocked with imagined facts or cherry picked ones. Speculation is always a lot more fun than reality.
In any event, on November 16, 2002, there was a peace/get out of Iraq rally at the Iowa National Guard headquarters building just north of Des Moines. The lobby of the headquarters building is a public access area. Among other things the building houses the state’s fiber-optic center and the weather disaster center.
Right across the street from the NG building is Camp Dodge, a WWI era military post owned by the State of Iowa and used by the Army National Guard. The post hosts the American Legion’s Boys State exercise in civics every summer, and has the state’s largest swimming pool and a NG museum. There may be an Issac Walton club house and skeet range, too. All of these are public access areas and as a practical matter, except for the firing ranges, so is the whole post. The Iowa State Patrol training school is on Camp Dodge. Part of the post (I think) is occupied by a fancy golf and country club. There is a combination of chain link and decorative fence along the road side of the post with a ceremonial gate leading into the main building area, an ungated entrance to the swimming pool and at least one gated entrance from the golf course and to the back road into the post. Each gate has the standard warning about being subject to search and exclusion posted.
During the rally at the NG building some people left the rally and went over to the main gate to Camp Dodge to waive signs and chant. They were arrested for trespass – on it must be noted state property. At least one person, a librarian at Grinnell College who kicked a deputy sheriff in the shins, was arrested for assaulting an officer. The arrests were made by county law enforcements. That, as the local news paper reports it, is all there was to it.
The day before the rally there was a seminar at Drake University Law School run by the local chapter of the Lawyer’s Guild. The seminar was to explore and explain the rules for public protest and the interplay between free speech / assembly rules and the police powers. Some of the people at the rally at the NG building had attended the seminar. The news papers do not tell me if any of the people arrested at Camp Dodge attended the law school event.
Last week the US Attorney’s office for the Southern District of Iowa served subpoenas on four peace activists who attended the Drake University event (they may have been speakers at the event) and served a Subpoena on Drake University to turn over campus security records on the people who organized the conference, ran the conference ad attended the conference and membership information of the Lawyers Guild. The FBI agent who served the subpoenas left a business calling card that said that the agent was on a counter-terrorism task force of the Omaha FBI office.
It is hard to figure out who is in charge at the US Attorney’s office. The guy who has been the US Attorney has been appointed to the Federal Bench and his replacement, a former tight end on the U of Iowa football team who ran for State Treasure in the last election, is not in office yet. The grand jury appearance and disclosure dates have been moved back to sometime in early March. The Des Moines Register, which along with the Cedar Rapids Gazette is the source of most of the foregoing, has been frothing at the mouth about all this.
It does all seem a little heavy handed – like killing flies with a twelve gage shotgun. But, as always, you can explain a lot more stuff by assuming incompetence than you can by assuming malice.
And doing so is called “Criminal Trespass” IIRC.
Then an investigation should be targeted at discovering the facts surrounding an alleged incident of criminal trespass.
Then an investigation should be targeted at discovering the facts of an alleged conspiracy to commit criminal trespass.
The allegations are necessary parts of investigations. Otherwise it is just a blanket-dragnet style search and we’ll worry about what to charge them with later. Without this focus how are investigators to narrow their search parameters? Do you believe searches should be broad and dragnet-style by default or more narrow based on the actual suspected crime?
And it is my position that there shouldn’t have been proceedings in the first place. It doesn’t matter who actually spreads the word about the proceedings. As a simple matter of fact the very fact that there were proceedings at all, even if the exact nature were kept absolutey secret by all parties, would still incur costs in time, effort, paperwork, retention of counsel, etc. on the parties being investigated on grounds which apparently don’t even merit allegations of an actual crime even as minor as trespassing.
Spavined Gelding thank you for the additional information. I agree that incompetence is as reasonable, if not moreso, an explanation as malice. Following the cases of “Free Speech Zones” and other clearly malicious anti-demonstration activities tends to make me lean towards the malice angle however. Not the least of my gripes about the current administration stems from resentment that they have made me, as did Nixon, tend to assume the worst when I encounter a story like this one.
Enjoy,
Steven
Oh boy - I get to be the first to mention that the subpoenas have been dropped.
Anyone need a cite?
In related news, tin foil sales dropped abruptly. Speaking from his underground bunker, Reeder blamed it on “the Bush economy”. 
Regards,
Shodan
Boy, you sure showed up Reeder, huh, Shodan. I mean, that totally doctrinaire, partisan knucklehead who absolutely refuses to consider that the other guy has a valid point of view. Means a lot coming from a guy like you who is, you know, totally fair and balanced.
The subpoena’s have been quashed! Goody gumdrops! I’m always pleased that something that should never have happened in the first place has been withdrawn.
I suppose its possible that it was all innocent. That no one even considered the chilling effect this would have on persons inclined to public protest. That their whole focus was to root out the dread threat of trespass on public property. That the massive machinery of justice is brought to bear in order to curtail unauthorized footprints, and not to discourage public dissent. Just like “free speech zones” are set up to protect the Shining One, and not to keep protestors our of the media spotlight. Yeah, I guess that’s possible.
I just don’t happen to think its very likely. What about you, Shoddy? Do you think that bringing all this heat down on a criminal conspiracy to commit a misdemeanor is a worthy enterprise?