Why Grand Juries, the Material Support Statute, and other Unconstitutional Legislation Need to be Abolished

The United States is only the country in the world that still uses grand juries. Grand juries are like preliminary hearings in that they are convened to determine if a crime has been committed. But unlike preliminary hearings, grand juries also require complete secrecy and the accused do not have the right to counsel. Grand juries are mainly convened so that corporate executives and government officials can prosecute and silence political dissidents,  humanitarian organizations, and others who would garner support if their case was allowed to be open to pubic view. They are also convened to grant immunity to guilty people in positions of power, such as cops like Darren Wilson who have murdered innocent people. Grand juries are also unconstitutional because they often violate the first, forth, fifth, sixth and fourteenth amendments. They exemplify how secrecy in governments corrupts governments all the more.

Any individual can accuse any other person of a crime in order to have it investigated by a grand jury, (including individuals on the grand jury), and before any evidence surfaces, they can subpoena the accused and take away substantial rights from the person, including their freedom. Anyone accused can have their homes entered and possessions taken as evidence without a warrant, which is in violation of the Fourth amendment. (The same can happen to those accused of psychosis without any prior evidence present, aside from the accusation itself.) Any of their possessions can be potentially declared as “evidence” and used against them in the trial, even if the court recognizes the evidence was obtained illegally.

Evidence that is obtained without a warrant is inadmissible in a normal criminal trial because of the exclusionary rule. (This rule also applies to the fourth, fifth and sixth amendments.) But the exclusionary rule doesn’t apply to grand juries, which make them in violation of two of these amendments. (The fifth amendment makes an exception for grand juries.)

The fifth amendment states no person “shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” But it also says “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,” and defendants can be held in contempt of court for as long as the grand jury is in existence if the defendants don’t provide testimony that incriminates at least one party, even if they don’t know anything.

Contempt of court is another archaic institution that violates the first amendment because nearly anything can be interpreted by a judge as being “in contempt of court,” and judges can jail defendants for it. The alleged purpose of having the “contempt” court order is to ensure trials serve their intended purpose and defendants don’t “obstruct justice,” but judges determine what is “contemptible,” not the jury or a panel of impartial observers. The purpose of a trial is to determine a person’s culpability, not to maintain an atmosphere judges prefer. It is a flagrant abuse of power.  It doesn’t matter if the defendant condemns the court or starts dancing on the table when being questioned. What matters is the person’s actual guilt or innocence. Further, it is reasonable to hate a court that is trying to take away your freedom and possessions.

The accused defendants in grand juries are not presumed innocent. The burden of proof is on the defending party and not on the prosecution, so they are essentially assumed guilty. Presumption of innocence is a legal principle that has its roots in Roman law. It was considered essential even then when slavery was an accepted practice, and the writ of Habeas corpus or a version of it is used by most self-proclaimed “democratic” governments today, yet U.S. grand juries do not employ it.

In a grand jury proceeding, defendants also lose their sixth Amendment right to counsel and can be interrogated without a lawyer. They are not allowed to cross-examine witnesses, even though that is an essential process of any court proceeding, (especially one in which the defendant has no lawyer). If the defendant is granted immunity (either “transactional” or “use and derivative” immunity) from prosecution, which they often are in order to compel testimony, the individual’s fifth amendment right becomes void, meaning he or she can’t stay silent.  Individuals are often coerced into accepting immunity without realizing it it does not grant actual immunity in all cases. It is an extremely misleading, and often self-incriminating waiver or a “perjury trap.”

Grand juries also decide what constitutes an “infamous crime.” In 1886 the Supreme Court ruled an infamous crime was one that resulted in imprisonment in a penitentiary, which is fairly broad. In 1957 the Supreme Court made the stipulation that the crime had to result in one year of imprisonment to be considered “infamous.” But people can be brought to grand juries for minor misdemeanors, even though they hardly qualify as “infamous crimes.”

Due process is also required in all state and local courts due to the due process clause in the fourteenth amendment, so state grand juries are also in violation of this amendment. This amendment doesn’t apply to federal grand juries so federal grand juries are allowed to abuse defendants even more. States are left to decide whether or not they want to use grand juries, and some use preliminary hearings instead.

As stated the United States is the only country on Earth that still uses grand juries. They are usually nothing more than witch hunts or sham trials and they are also enormous wastes of taxpayer money. There are already a host of agencies that investigate crimes like the local police, state police, FBI, DEA, CIA, etc. The last thing we need is another one that can operate in secret. Preliminary trials are more than sufficient to investigate possible crimes.

Grand jurors are also not screened for bias, as jurors are in normal criminal trials, and they are often not selected randomly. Jurors can be selected solely to help the prosecution’s case for indictment or the defendent if he happens to be a government official. (A grand jury can be made up solely of former police officers, federal agents and soldiers.) The prosecution in the trial does not have to produce evidence that would help the accused, despite what the US Attorneys Manual says about the obligation of prosecutors to protect “citizenry from unfounded criminal charges” in grand juries, and jurors often only hear from the prosecution. In Kentucky, the indictment rate in grand juries is about 98-99%. 

Sol Wachtler, Chief judge of New York State’s highest court, said that grand juries are so malleable and biased that a prosecutor could get a grand jury to “indict a ham sandwich.” 

Grand juries and legislation that targets free speech and violates the first amendment   (like the NDAA, SOPA, the Patriot Act, etc.) are mostly used to target political dissidents like anti-war activists, anarchists, and more radical individuals. The government attempts to justify this by claiming that it is an essential part of the war on terror, but many of these activists are fighting terror with their actions and words, and the very system they are protesting is using its power and secrecy to silence them.

The “war on terror” is just like the red-scare of the 1950s. It is simply an excuse to target political minorities that refuse to uphold the status quo, and any strictly humanitarian organizations that want to bring attention to human rights violations caused by the government’s  “war on terror” are considered to be “terrorist” as well.

Under the material support statue or 18 USC § 2339B, (see here: http://www.law.cornell.edu/uscode/text/18/2339B) a person can be put in jail for 15 years for giving so called “material support” for any organizations deemed “terrorist” by the state department. Material support, as defined by the statute, doesn’t just include weapons or military aid that would obviously be prohibited; it also includes humanitarian aid and even simply talking with terrorists to reduce radicalism and create nonviolent solutions to conflict. This statute tramples on the first amendment and creates far more violence than it deters. It also makes religious materials exemptions, so bibles can be sent but food can’t. (Cigarettes and chewing gum are sometimes made exceptions too and they are allowed to continue flowing.) Human rights organizations often have to intervene because the trade embargoes on “terrorist countries” have an enormous deleterious impact on the poor and working classes of these countries and some are prosecuted because of their assistance. Therefore, it is ostensibly acceptable to indoctrinate terrorists with another religion, radicalize them and keep the struggling communities surrounding them hooked on tobacco, but should you try to discuss peace with radicals or provide people in the community with actual humanitarian aid, you are no more than a terrorist according to this statute. Like many of the other “anti-terrorism” laws, this statute is merely meant to instigate witch-hunts against political dissidents and peace activists, just as the “anti-communist” legislation and propaganda in the 1960s did to legitimate, peaceful people with communist ideologies.

A person, of course, can’t be held liable for a criminal activity performed by an organization just because they have a loose association with it. As a citizen of a country, you aren’t responsible for all of your government actions and crimes. I certainly don’t approve of America’s current wars, but I am a citizen of this country, so does that make me an accessory to war crimes?  Of course, it does not. People with associations to organizations or institutions, cannot be held accountable for radicals who may overtake them and misdirect the focus of the entire group. If individuals had nothing to do with the crimes of the organization, there should be no debate about their culpability.

Jimmy Carter said, “The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.” This is right. The best way to prevent terrorism is to reduce the will for terrorism.

The Humanitarian Law Project is one of the many humanitarian organizations that has been prosecuted because of the material support law under the Patriot Act. In the Supreme Court case of Holder v. Humanitarian Law Project, the HLP was charged with “aiding” terrorist organizations because they tried to help the Kurdistan Workers Party in Turkey and the Liberation Tigers of Tamil Ealam become peaceful. Noam Chomsky called the material support law that lead to the prosecution “the first major attack on freedom of speech in the United States since the notorious Smith Act back around 1940.”

Many other innocent people have been targeted by grand juries and the biggest problem is that it is hard to find out who they are because everything has to be kept secret under these laws while citizens are expected to reveal just about everything about themselves. Leah Lynn Plantee and her friends Kteeo Ole Jnik and Matthew Kyle Duran are some of the many examples of victims of grand juries and the state suppression of free speech. They are anarchist activists with humanitarian concerns who were arrested recently because the grand jury wanted information on the vandalism that occurred during the May Day protests. However, they had no involvement in the vandalism, and they were simply targeted simply because their political ideologies.  Leah was in court four times just for staying silent until the Judge claimed she was in contempt of court because she had been granted “transactional immunity,” but refused to talk. Her sentence was 18 months, but fortunately she was freed sooner due in part to pressure from free speech and anarchist activists. You can find more information about them here: http://www.freeleah.org and and on wordpress: http://nopoliticalrepression.wordpress.com/. I would encourage others being unfairly prosecuted to publicize their cases much in the same way to show directly that these prosecutions are unconstitutional and amoral. All individuals fighting for positive change are essential for any free and just society to function, and everyone has the right to the free speech, regardless of what the government thinks of that speech.

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One response to “Why Grand Juries, the Material Support Statute, and other Unconstitutional Legislation Need to be Abolished

  1. Didnt know the history of any of this, but would like to learn more about it, based on your piece.
    Your essay and its subject matter is fascinating, compellingly presented, and seems incredibly important.
    Thanks for taking on another important issue, Adam, for bringing it to our attention, increasing awareness of the problem and helping to open up the discussion. .

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