Farewell to the Fifth Amendment
He looked like anybody’s old geography teacher shuffling up the dirt road on a sharp October morning in the Colorado foothills. He had on a formless sports jacket and tie that marked him as being out of place and was accompanied by the part-time postman and deputy sheriff of the rugged rural mountains behind Walsenberg, Colorado. The people from the commune stopped their chores and came out from the trees to form a silent circle around the two intruders and Robbert Sussman, 29, interrupted his work at chopping wood for the winter and came down the road to meet the man.
“I have a subpoena for you to appear before a federal grand jury in San Francisco,” the professorial FBI agent said to Sussman, then turned around and walked down the road.
The subpoena ordered Sussman to appear within four days in San Francisco, transportation and $36-a-day living expense paid by the government. The half sheet of paper gave no indication of what or who it was about, but Sussman took it stoically, giving his son, Moon, a playful rub on the head and heading back to the house to pack.
The same scene was being repeated at a commune in Oregon; in a Public Health Service Hospital in San Juan, Puerto Rico; outside a post office in Eugene; in an electronics firm in Minneapolis; at a Sunset District house in San Francisco.
In all, 16 disparate people who had never met each other before were subpoenaed to appear before the latest of the US Justice Department’s “special” grand juries convened under the aegis of the Internal Security Division of the Department of Justice. Not even the 23 grand jurors selected from voter registration rolls in Northern California’s Ninth Federal District knew exactly what it was about. That was the private information of US Attorney Guy Goodwin, dapper 45-year-old chief of the elite Special Litigation Section, a sinister-sounding unit dedicated to cracking the underground Left in America.
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Grand juries have been a part of the American justice system since before colonial radicals began seriously plotting against the king. Historically, they have been seen as a means of protecting the people from sudden and malicious prosecution. The grand jury, a panel of randomly selected ordinary citizens meeting in secret, is charged with weighing evidence to determine whether a crime has been committed and whether there should be indictment against a particular individual. In the federal system, a grand jury is the only means of obtaining a felony indictment. Such grand juries routinely sit in every federal district, hearing cases on income tax evasion, narcotics, trade regulations and on into a grey area of tedious criminal charges.
But, with the passage in 1970 of the Organized Crime Control Act, federal courts were authorized to set up special grand juries in any district where the attorney general or one of his subordinates concludes such a body is “necessary because of criminal activity.”
To coordinate this new power, President Nixon chose the Internal Security Division of the Justice Department, a cubbyhole division that was begun in 1954, but went dormant with the demise of Joe McCarthy. The division was given new life under the vigorous guidance of Robert Mardian, conservative – minded Californian and buddy of Attorney General Richard Kleindienst. To Mardian and his division was given the task of sorting through all the laborious files of FBI reports on radical activities in America and finding cases to begin prosecution. The eager Mardian also rounded the Justice Department’s Inter-divisional Intelligence Unit (IDIU) under his direct control with its maze of computerized and stored pieces of information waiting like fragments in the subversive collage he is to construct.
For the field work, Mardian chose Guy Goodwin, a Kansas City lawyer with a compulsive affection for neatness and prim habits. He is known to stand before a witness in his meticulously preened dark suit with not a hair out of place and stare haughtily down his nose through his half-frame reading glasses to demand, “Tell the grand jury, please, where you were employed during the year 1970, by whom you are employed during the year 1970, how long you have been so employed and the amount of remuneration for your employment during the year 1970….”
As was the case with other Justice Department honchos, Mardian – Colonel Mardian to his Washington friends – left his post earlier this year to join the Committee to Re-Elect the President. Mardian, who had been an eager Goldwater backer in past years, was replaced in the Internal Security Division by William Olsen, a less well-known but equally right-thinking Republican. By this time, Goodwin was too busy to himself go off campaigning for anything other than the crackdown on radicals.
So carefully organized is Goodwin and so detailed is his assortment of facts, that witnesses have been startled when he would suddenly and smugly refer to them by a nickname familiar only to their friends.
In the last two years, more than 20 grand juries have been used to investigate cases related to politically radical or anti-war activities. The best known among them are those convened over the Pentagon Papers, Daniel Berrigan, and the grilling of Leslie Bacon about the US Capitol bombing. Goodwin has not been present at all of them, but his grand inquisitor style has set the precedent and established the model for other US attorneys working with him.
The Internal Security Division, with Goodwin as its field marshal, has succeeded in stretching out the purpose of the grand jury beyond that of examining evidence on a single crime to becoming an elaborate investigative body with powers not enjoyed by the most fanatic of police agencies in America and with an ultimate threat of imprisonment that spits at the parchment that the First and Fifth Amendments to the US Constitution were written on. In one sense, the new use of grand juries as inquisitors is the grandson of the old House Un-American Activities Committee and the direct descendant of the government’s failures in its attempts to prosecute conspiracy charges such as those against the Chicago Eight as a means of hammering down social protest. But perhaps the most alarming aspect of the Justice Department’s grand jury tactic is that it has dodged and in effect voided the essence of the American system of checks and balances and individual rights. Grand juries have more power than the old congressional committees and many observers feel the Justice Department may have succeeded in getting around even the Supreme Court. As with the war in Vietnam, the real power in this onslaught lies with the executive and ignores Congress.
The grand juries themselves, no matter how randomly selected or how fairly composed, become as mute observers to the Star Chamber questioning
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