2011-05-11 What to Expect in the WikiLeaks Grand Jury Investigation

A federal grand jury is meeting at 11 am EST in Alexandria, Virginia. The grand jury is being employed to “build” a case against Julian Assange, the WikiLeaks founder who just won a gold medal for peace and justice from the Sydney Peace Foundation.

“The WikiLeaks case is part of a much broader campaign by the Obama administration to crack down on leakers,” writes Carrie Johnson of NPR. Johnson is one of a few reporters in the US press who has published a report today on this stirring development in the United States. She finds “national security experts” cannot “remember a time when the Justice Department has pursued so many criminal cases based on leaks of government secrets.”

The number of people subpoenaed to appear before the grand jury is unclear (and not in any of the few news articles published on the grand jury so far). What is known is that at least one individual from Cambridge was issued a subpoena seeking to compel him to testify before a Grand Jury. Glenn Greenwald of Salon.com reported the individual served had a public link to the WikiLeaks case and it was “highly likely” the subpoena was connected to the WikiLeaks Grand Jury investigation.

There are two other federal Grand Juries that are ongoing in the country. In San Jose, California, a Grand Jury has been empanelled to investigate the “hacktivist” group, Anonymous. Another Grand Jury in Chicago has been empanelled to target antiwar, labor and international solidarity activists for their political action.

The last news reports on the Grand Jury investigating Anonymous came in the beginning of February. Then the Grand Jury began to review “evidence” in multistate raids that took place on January 27. The “evidence” includes “computers and mobile phones seized from suspected leaders” and was to be used to investigate the “denial-of-service attacks” the group launched in December against MasterCard, Visa, PayPal and the UK-based Moneybookers.com.

There are not many details known. What is evident is those who are serving on the Grand Jury are working to piece together all the information that they have on Anonymous so the government might have a case, which could then lead to indictments.

Much further along in the grand jury process is the Grand Jury in Chicago. In fact, just days ago one of the activists, Hatem Abudayyeh, had his and his wife’s bank accounts frozen by the US Treasury Department. He and twenty-three activists from Chicago, Minneapolis and the greater Midwest have been subpoenaed to testify before a Grand Jury on suspicions of providing material support to foreign terrorist groups, Abudayyeh and thirteen other activists had their homes raided by the FBI back in September of last year. The activists were called to appear before a Grand Jury in October. More activists were raided and subpoenaed, bringing the total number of activists facing investigation to twenty-three by the end of the year. The activists were called to appear before the Grand Jury in Chicago on January 25 of this year. They all refused to testify.

The activists subpoenaed consider the Grand Jury investigation to be a “fishing expedition.” That, in fact, may be how Julian Assange and staff members of Wikileaks view the WikiLeaks Grand Jury investigation.

A statement on “Grand Juries” posted on the Coalition to Stop FBI Repression website explains the nature and processes of a federal grand jury.

A grand jury is a panel of jurors who hear evidence from a prosecutor and decide whether or not to charge someone with a crime. The grand jury can subpoena pretty much anyone they want and ask about anything, and people can be jailed for contempt if they do not answer questions. The jurors are hand-picked by prosecutors with no screen for bias. All evidence is presented by a prosecutor in a cloak of secrecy. The prosecutor has no responsibility to present evidence that favors those being investigated. Grand jury witnesses have no right to have a lawyer in the room to object to how the prosecutor is conducting the proceedings.

The grand jury process “dates back to the Nixon administration’s attack on the social movements of the 1970s.” One can surmise from the statement that Anonymous, WikiLeaks and antiwar, labor and international solidarity activists have become ensnared in a grand jury process that is "neither fair nor even handed, no matter who is in charge.”

A more detailed explanation of the grand jury process can be found in the archives of Firedoglake.com. User Masoninblue explains typically 17 to 23 citizens serve on the grand jury and meet once per week for about 18 months to hear witness testimony, review evidence and vote on the issuing of indictments. The Fifth Amendment requires all federal felony prosecutions to be by grand jury indictment “unless a defendant waives his right to be prosecuted by indictment and agrees to be prosecuted by information.”

A grand jury’s chief task is to vote on whether the government has “presented sufficient evidence to establish probable cause that the defendant(s) have committed crime(s) charged. Twelve members vote to approve the indictment. A “foreperson” of the grand jury hands down the indictment to a District Court Clerk’s Office.

Grand juries do not typically decline to issue indictments. All twenty-three of the subpoenaed activists are currently bracing themselves for indictments and have launched a "Pledge of Resistance" campaign to organize support for when they are indicted.

It is likely those subpoenaed in investigations of WikiLeaks and Anonymous will in the end be indicted too.

In case the process does not yet sound unfair or unjust, like something that can be used as “a tool for political repression,” consider the following:

Grand juries meet in secret and its members take an oath never to discuss what happens inside the grand jury room. The only other people present in the room when the grand jury is in session are a court reporter who transcribes the proceedings, a federal prosecutor who presents the government’s case, the case agent who is the law enforcement officer in charge of the investigation, and the witness who is testifying. Witnesses may appear with counsel, but their attorney must wait outside the grand jury room while the witness is testifying. The witness must answer all questions truthfully under penalty of perjury. The witness can request a recess in response to a question in order to consult with counsel outside the grand jury room. The witness may refuse to answer any question on the ground that a truthful answer might tend to incriminate the witness, or lead to the discovery of evidence that might tend to incriminate the witness. Since the Fifth Amendment protects this privilege to refuse to answer, no witness can be punished for refusing to answer a question on the basis of asserting the Fifth Amendment. Properly subpoenaed witnesses who refuse to appear before the grand jury, or who appear but refuse to answer questions without asserting the Fifth Amendment, may be held in contempt of the grand jury and jailed until such time as they agree to answer the question, or the grand jury term expires, whichever happens first.

These details can all be confirmed by Tom Burke, one of the twenty-three activists subpoenaed to appear before the Grand Jury in Chicago:

As an activist or any citizen, you’re called to face a grand jury where there’s no judge in the proceedings. There’s only the US prosecutor. It’s like a preemptive trial. So the US prosecutor gets to pick the 23 jurors. There’s no one from your side in the room. The US prosecutor guides the 23 through the process. They tend to want to help and identify with the prosecutor. They just hear one side of the story. When you enter the room, your lawyer is not allowed to be with you. You have to excuse yourself and go to the hallway to talk. Media is not allowed to watch it and you can’t have your family or friends support you in the room either.

The shady nature of the grand jury process has led all twenty-three activists being investigated to refuse to testify. They stand in solidarity and may face jail time. They know there may be consequences for not providing testimony, but they are convinced the Grand Jury they are being called to appear before is part of a new McCarthyism in America.

This is a choice those subpoenaed to testify in Alexandria can make. Those asked to speak on WikiLeaks' operations can refuse to give testimony. If individuals subponeaed know the others who are being called before the grand jury, they can stand together united against a “fishing expedition” that seeks to conjure up a case.

It is not obvious or clear that any crime has been committed, but the government feels a burden, perhaps because of the political climate soured by Republican politicians, to prosecute and hold responsible at least someone they can claim was involved in recent WikiLeaks releases.

The government is likely to use information obtained through an order for Twitter user data from the accounts of three individuals linked to WikiLeaks: member of Icelandic Parliament, Birgitta Jonsdottir, Rop Gonggrijp, founder of Internet service provider XS4ALL, and Jacob Appelbaum, a computer programmer. Legal questions surrounding the obtaining of this data for investigating WikiLeaks may be all the more reason for those subpoenaed to testify to refuse to appear before the grand jury.

WikiLeaks has urged those seeking protection to contact the Center for Constitutional Rights.