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The Ellsberg File

By M. DAVID Landau

It is unfortunate and ironic that the Pentagon Papers are ancient history only to those who would learn and benefit most from them. While President Nixon's cleverly-timed China initiatives have successfully removed the once-secret study from public view, the domestic arm of Washington's foreign policy machine, the Internal Security Division in the Department of Justice, has opened an ambitious grand jury investigation into the study's release.

The grand jury probe, which continues at high speed in Boston and in Los Angeles, is a direct threat to the anti-war movement and to the constitutional rights which have traditionally allowed such movements to exist. Even if it were being conducted under more restrained and strictly legal circumstances, the investigation would appear repugnant to the many who feel that Daniel Ellsberg's action was fully justified. As it is, the grand jury's activity has amounted to an uncalled-for inquisition of Ellsberg's friends and associates.

These events are not occurring in a vacuum. For the past two and a half years, the Administration's cavalier views of civil liberties have combined with recent decisions by the federal judiciary to turn the grand jury system into a powerful political weapon in the government's battle with the American left. Ever since early 1969--when Attorney General Mitchell used an Illinois grand jury to reopen an investigation of the Chicago "conspiracy", a case which Mitchell's predecessor had judged to be empty and invalid--similar juries across the country, in St. Louis, Seattle, Tucson and, most recently, in Harrisburg, have conducted sweeping investigations into the activities of radical groups and produced the now-familiar "conspiracy" indictments in turn.

The key decision concerning grand jury powers occurred late last year, when the 7th Circuit Court of Appeals ruled that grand jury interrogations overrode First Amendment rights. Thereafter, witnesses appearing before such juries could refuse to answer questions of the "describe all conversations you had with the defendant" type only on pain of imprisonment until the grand jury broke up. Since jury investigations take several months, and juries can be impaneled again and again, the consequences of refusing to answer can be brutalizing.

The added element of secrecy has given an even greater degree of impunity to the grand jury. Under the law, grand jury proceedings cannot be made known until after they terminate, and jurors must swear to remain silent about them. In earlier Administrations, the issues which now occupy grand juries were handled in Congressional committees; however cheap and degrading those committee hearings were, they did fall under public scrutiny and could be evaluated by any interested observer. But it has been an important priority of the present Administration to shift these committee duties to the less vulnerable grand juries, and the effect has been to remove their business from public view.

This preoccupation with secrecy is not accidental, nor do government officials take it lightly. Initial press reports of the Boston grand jury indicated that the newspaper sources were none other than members of the jury itself. These reports stated that the jury conducting the probe had been impaneled in April; subsequent stories disclosed that the investigation was being undertaken by a grand jury sworn in last July. Court observers speculated that the government, in order to avoid leaks, had switched the case from one jury to the next--a move so legally questionable that it may invalidate any indictments the jury produces, yet a move which government prosecutors apparently thought necessary.

The key factor operating in the government's favor, of course, is its near-absolute control over the grand juries themselves. Ellsberg could never have summoned a grand jury to examine the Vietnam policy decisions of the U.S. government, but Washington can assemble innumerable grand juries to investigate Ellsberg. This point may seem superfluous, but it is important to remember that in calling the jury, the government also determines the locale and, therefore, the likely circumstances of the trial proceedings. The indictees in the alleged Kissinger-kidnap plot could have been tried appropriately in New York or Danbury or in any other city where "damning" letters originated; of all such places, the Justice Department prosecutors opened their case in Harrisburg, a conservative city with virtually no student population, inhabited mostly by Lutherans who are said to be fiercely anti-Catholic in their prejudices.

Likewise, the apparent fact that Ellsberg copied the Pentagon documents at Rand in Santa Monica may not have led directly to the government initiating a jury investigation in Los Angeles. Cambridge is more likely the area from which the documents were distributed, and New York is where they first appeared in print. But Los Angeles has a less liberal temperament than either of the other cities.

Despite the fact that Ellsberg is still being investigated, and will be tried beginning next January in Los Angeles, the Boston investigation has taken on an importance of its own. Through the probe now taking place, the government appears to be aiming for indictments of newspaper reporters and anyone else who may have helped Ellsberg distribute the documents; the charge, presumably, would be interstate transport of illegally obtained property. Nonetheless, the government prosecution has no discernible scope or pattern, and its actions leave the distinct impression that it is engaged in a "fishing expedition" to acquire information which may lead to evidence for its court case. Prosecutors are doubtless also seeking to obtain information about anti-war resistance in the Boston area to which they would otherwise have no legal access, and the grand jury is the ideal vehicle by which they can get it.

One of the government's first actions was to subpoena Ellsberg's bank record to determine whom, if anyone, he had paid to xerox the documents. The jury then took up other matters while the Justice Department official handling the case, Paul C. Vincent, travelled to Los Angeles to interrogate Ellsberg's in-laws and other associates before the grand jury there. These sessions turned up nothing. Then, returning to Boston, Vincent initiated subpoenas against several academics who are widely thought to have had nothing to do with the leak of the secret study; the three who have so far been called to appear have all contested their subpoenas.

That the government has subpoenaed many of these people for as-yet-undefined purposes is best illustrated by its treatment of three witnesses: Samuel Popkin, an assistant professor of Government at Harvard, and two of Ellsberg's in-laws. In each case the witness refused to answer any questions beyond routine formalities of name and address. At that point, Vincent could have offered each witness immunity from prosecution in the case; if the witness still refused to answer, he would have been jailed. But it is likely that the government would grant immunity only if it knew precisely what information it was seeking, and if it was reasonably sure it would not later want to have the witness indicted. Vincent knew neither of these things, and all three witnesses were released from further testimony. On the other hand, a man who was subpoenaed in Los Angeles last June--Anthony Russo, who worked with Ellsberg at Rand--was clearly thought to possess valuable information, though he was not viewed as a prospective indictee. After refusing to testify even after receiving immunity, he was imprisoned and remains in jail today.

It is probable that government prosecutors will continue to question Ellsberg's academic colleagues in the Cambridge area, and equally likely that their goal is no better defined than general information-gathering for their own purposes. If that is the case, those who are subpoenaed to appear before the jury should not consent to testify, and it is worth noting that those who are approached by the FBI are under no legal obligation to talk. With the government's perversion of basic rights through indiscriminate use of the grand jury system, it seems only just that members of the academic community should refuse to collaborate; Ellsberg is certain not to receive fair treatment from Washington, and widespread opposition to the government's witchhunt is the only way to redress the balance.

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