Understanding the Wikileaks Grand Jury

What we learnt from the Stratfor emails – part one: what sealed indictment?

In spite of the golden rule of secrecy, some of the 5 million emails from private global intelligence company Stratfor currently being released by Wikileaks, have suggested the grand jury and its decisions have not been kept secret for everyone.

In an email from January 26th 2011 Fred Burton – vice president of Stratfor for Counterterrorism and Corporate Security and a former Deputy Chief of the Department of State’s counterterrorism division for the Diplomatic Security Service – wrote:

Not for Pub —

We have a sealed indictment on Assange.

Pls protect

The timeline is particularly interesting: the grand jury hearings were said to have started in May 2011, when a witness from Massachusetts was subpoenaed, and the grand jury probably started a few months before around December 2010. Was Fred Burton referring to an indictment from a different court? Were the witnesses requested to testify although a decision had already been made?

The term “grand jury” is used in none of the 973 emails released so far, which forces us to wonder to what extent the whole procedure in Virginia is not a travesty of justice to provide a legal ground to Julian Assange’s potential future arrest.

Sealed indictments in grand juries are however a legal option mentioned in Rule 6(e)(G)(4) of the Federal Rules of Criminal Procedures to prevent the decision from being known before the defendant is in custody:

Sealed Indictment. The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial. The clerk must then seal the indictment, and no person may disclose the indictment’s existence except as necessary to issue or execute a warrant or summons.

2010 US House Judiciary Comittee debate

On December 2010 a panel of democrat and republican representatives, scholars, lawyers and judges moderated by Democrat Representative John Conyers gathered at the US House Judiciary Committee to debate the constitutionality of prosecuting Julian Assange under the Espionage Act.

Different visions on Wikileaks’ impact on the country’s safety were discussed. Questions were raised about the need to change the law and whether the espionage act was obsolete. The nuance between leaking and spying was also a key element brought up during the debate. While some panellists severely condemned Bradley Manning, overall most agreed there was a poor management of classified materials and a tendency to over classification when more transparency and a better protection of actually secret material would avoid such massive release.

Watch the 3 hour debate on Wikileaks Press.

Grand juries for dummies

What is a grand jury?

The purpose of a grand jury is to determine whether there are legitimate reasons to believe a crime has been committed and that a specific person committed it. In the case of Wikileaks, the grand jury in Virginia will try to determine if there is any probability that Julian Assange might be guilty of espionage. If so an indictment – a written statement of the charges – is written and the person suspected faces a trial.

 

Who is part of the grand jury?

Each state of the US has a pool of citizens who can stand as potential jurors for regular trials. The grand jurors are selected from those same pools. However, while in a regular trial each juror is being checked against any bias he/she may have, in a grand jury the jurors are randomly chosen regardless of the bias they may have. It is particularly significant in the case of the Wikileaks grand jury: indeed the grand jury is taking place in Alexandria, Virginia, where there is a very high concentration of military contractors and their families, a social group likely to be biased regarding Wikileaks.

 

How does a grand jury work?

The grand jurors only hear the viewpoint of the government’s attorney who presents his evidences as to why the person should be prosecuted. At no point the defence is heard. The grand jury examines the evidences and listens to testimonies from the witnesses. Both evidences and witnesses are chosen by the government’s attorney.

The government’s attorney is also the first one to ask the questions to the witness. The latter has a right to refuse to answer but the grand jury may decide to go to a court in order to obtain a ruling compelling the person to speak.

Among the witnesses from the Wikileaks grand jury were David House – one of Bradley Manning Support Network’s founders –; as well as a Cambridge resident; Nadia Heninger, a cryptography expert and Tyler Watkins, Bradley Manning’s ex-boyfriend. David House has publicly stated he refused to speak.

The choice in witnesses suggests the ambiguity between the Wikileaks Grand Jury and Bradley Manning’s trial, whose hearing sessions are currently taking place at Fort Meade. Manning’s lawyer David Coombs had already questioned the impartiality of Paul Almanza investigative officer for the article 32 hearing who was also working for the US department of defence, the same department in charge of the grand jury.

 

 

Grand Jury and secrecy

Originally to protect the jurors, to insure the presumption of innocence and to allow witnesses to make truthful testimonies, grand jury are held in secret. It is also meant to prevent the person against whom there might be an indictment from escaping. However, aside from the deliberation and voting any information may be shared with the government attorneys. As we will see in future posts, the secrecy of the Wikileaks grand jury has obviously been breached considering information regarding the deliberation were discussed in the Stratfor emails.

 

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Next post: “Stratfor emails: what did we learn about the Grand Jury?”