Grand juries have seen a resurgence as the FBI cracks down on radical communities.
From the narrow windows of New York’s Metropolitan Correctional Center, 24-year-old anarchist Jerry Koch can see the last place he stood as a free person.
The federal courthouse at 500 Pearl Street is a familiar setting where Koch spent much of his time over the past several years providing legal support to New York activists. During Occupy Wall Street, Koch gained a reputation as the go-to person for help contacting lawyers, raising bail, and organizing supporters to be there when someone had a hearing or was released. This, his supporters say, is why he now has a view of the courthouse from his cell in the federal prison across the street.
Koch’s partner, Amanda Clarke, will tell you that all prisoners are political prisoners. Koch, however, fits a more traditional definition of the term. He has not been charged with or convicted of any crime. Legally, his incarceration is not considered punishment, but rather “coercion.” He is being held in contempt of court for refusing to testify before a grand jury in what many believe is an effort by the FBI to intimidate other anarchists, and anyone else engaged in political dissent.
Grand juries have been a tool in the FBI’s arsenal of intimidation and information-gathering tactics for decades. They were a hallmark of the Red Scare, COINTELPRO, and more recently the Green Scare, in which animal rights activists and environmentalists have been branded “eco-terrorists” by law enforcement.
Over the past year grand juries have seen a resurgence as the FBI has cracked down on radical communities. Koch’s case was preceded by a high-profile grand jury in the Pacific Northwest, where four people from Washington and Oregon were imprisoned for refusing to testify.
Will Potter, author of Green Is the New Red, a historical survey of the Green Scare, says there are parallels between these recent grand juries and past FBI interference in social movements. But these cases also mark what he views as a change in tactics on the part of law enforcement.
“When we’re seeing things like the grand juries in the Northwest, or Jerry’s case in New York, we have to remember that the FBI is giving training presentations to new agents identifying anarchists as ‘criminals in search of an ideology,’” Potter warns. “What we’re seeing is a criminalization of an entire belief system.”
Potter says that historically grand juries have indicted prominent figures such as Craig Rosebraugh, spokesperson for the Earth Liberation Front. However, in recent years federal law enforcement agencies have targeted people who may not have direct affiliations to organizations under scrutiny, but are believed to be of the same political persuasion.
“It sends a message that everyone [with radical politics] is vulnerable, everyone’s at risk.”
Though Koch was known for his politically driven work, the circumstances of his case exemplify the type of intimidation tactic Potter describes.
The grand jury that subpoenaed Koch was convened to investigate an incident that took place in 2008, when a cyclist deposited an explosive device outside an army recruitment station in Times Square. The blast shattered a window but injured no one. Koch was first subpoenaed to testify before a grand jury about the incident in 2009. When his lawyers pressed the prosecutor for a reason, they were told he was believed to have been at a bar where a conversation between other people took place and information about the incident was discussed. No further details were given.
The message to other dissidents? If you are thought to be anywhere even near the wrong kind of conversation, you could be suspect.
Some of Koch’s supporters don’t believe the feds even think Koch has information relevant to what has become known as the Times Square Bombing. Clarke calls it a “fishing expedition,” an attempt by the authorities to glean information about anarchist social networks.
Potter agrees that this has become one of the primary functions of grand juries. “They are really being used to try to build connections of how social movements are operating and to identify people solely based on their politics.”
Understanding that his testimony could help the FBI infiltrate activist communities in New York, Koch refused to testify. In an unusual turn of events, he was not held in contempt of court as grand jury resisters typically are.
But last April, during a trip to Florida to visit his mother, Koch received word from his lawyer that he had been subpoenaed a second time. The grand jury was investigating the same incident and wanted him to testify under the same nebulous allegation of having been at an unnamed bar on an undisclosed date where someone said something about the explosion outside the Army recruitment station.
In May, Koch appeared before the grand jury and again refused to testify. This time a contempt hearing followed. Two hundred supporters packed the courtroom and adjacent hall to hear the judge’s ruling. Koch was found to be in contempt of court and would be incarcerated until he cooperated or the grand jury concluded: up to 18 months.
Grand Juries: Your Constitutional Rights on Opposite Day
Grand juries were originally codified in the Bill of Rights as a protection against arbitrary indictments. Instead of prosecutors having the sole power to bring charges against someone, for certain crimes they have to first present evidence to a grand jury, which decides whether it is substantial enough to follow through with an indictment.
Jen Kaplan, a lawyer who represented one of the Northwest grand jury resisters, says that rather than operating as a check on the judicial system, grand juries have become, “grease chutes where the prosecution presents evidence and the grand jury more likely than not will go forward with an indictment.”
Witnesses called to testify before a grand jury are similarly subject to overreach and abuse, as prosecutors use the system to circumvent the right against unreasonable searches and seizures, and the right to remain silent.
“The government cannot, without demonstrating probable cause to a court, come to your house and demand that you turn over various documents,” Kaplan says. “But in the case of a grand jury, the government has to prove nothing in order to force you to present them with various things which could include notes, diaries, your cell phone, your address book.”
In just about every other context you have the right to remain silent. But a grand jury witness is automatically granted immunity, nullifying her ability to invoke another protection afforded by the Fifth Amendment: the right against self-incrimination. When you have immunity and still refuse to talk, you can get slapped with contempt of court.
A further check on the system prohibits the government from punishing witnesses for civil contempt. But it is allowed to take “coercive” measures in order to convince them to talk. This almost always means incarceration. Witnesses who refuse to testify can face imprisonment for as long as the grand jury is in session—up to 18 months. If it’s a special grand jury it can be extended for another 18 months, and after all of that, the prosecutor still has five years to decide whether or not to charge a resister with criminal contempt, for which regular old punitive measures are permitted. There is no maximum sentence for criminal contempt; a person found guilty of this charge could theoretically face life in prison.
Grand juries are exempt from the right to self-discovery. This means that the subpoenaed party is not entitled to information pertaining to the reason for their subpoena. That’s why Koch will never know anything more about the supposed evidence against him, beyond the threadbare allegations his lawyers were able to pry out of the prosecutor.
“That makes things very difficult when you are trying to build an argument like a motion to quash a subpoena,” Kaplan notes.
A lawyer could argue that her client does not have to appear before a jury for a number of reasons. It could be that the material the government is looking for is covered by the First Amendment, the subpoena is being used for an improper purpose, or that the subpoena is the result of illegal surveillance. But since the government doesn’t have to provide any of this information, it’s impossible for lawyers to assert these defenses.
The final seal of secrecy on the grand jury process is that only the prosecutor, witness and jury are allowed in the hearing room. No lawyers are present and no public transcript is produced. The prosecutor can ask anything he wants, whether or not it pertains directly to the investigation at hand.
All of these factors make grand juries a prime tool for law enforcement agencies to social-map activist networks and intimidate their members. In the case of the Pacific Northwest resisters, the grand jury was clearly a pretext for doing just that.
Early on a July morning in 2012, Katherine “Kteeo” Olejnik finished her night shift at a popular diner in downtown Olympia where she worked as a waitress and bartender. She had a couple of drinks with co-workers, then headed home to fall into bed at 6am. One hour later she was awakened by her housemate, Matt Duran, who said there were FBI agents at the door, and they were asking for her.
“I was completely shocked. I had no idea what information the government would have wanted from me, or claimed that they wanted from me,” Olejnik recounts. “I was kind of in a daze. I was scared.”
After receiving her subpoena, Olejnik called Jen Kaplan. Over the next few days, the lawyer learned the grand jury that summoned her client had convened to investigate property damage that occurred during May Day protests in Seattle earlier that year.
“We became very forthright with the government that I was not at May Day, that I had no information,” Olejnik says. She and her employers submitted a declaration under penalty of perjury stating that she was at work on May Day. The prosecution did not budge.
Two weeks after Olejnik was subpoenaed, Duran was walking to work when a black SUV pulled up beside him and two agents popped out, subpoena in hand. He first thought was, “Well, I’m going to prison.” He continued on to work, where he made calls to the National Lawyers Guild.
There is no doubt Olejnik and Duran are politically active in their community, but the work they’ve been involved with has given them no reason to fear being singled out by law enforcement. Duran describes himself as a Chicano anarchist and has put his politics into practice by offering free computer training workshops and organizing a feminist men’s group where participants deconstruct masculinity. Olejnik has volunteered with different organizations in Olympia including Parents Organizing for Welfare and Economic Rights, where she provided free childcare. She has plans to go to law school.
The two fit Will Potter’s theory that law enforcement agencies are shifting away from going after individuals in leadership positions. The events that followed would confirm that the FBI was indeed casting a wide net.
The same month Olejnik and Duran received their subpoenas, the FBI and Joint Terrorism Task Force busted down the door of a home in Portland in the early morning hours. They had a search warrant seeking phones, computers, anarchist literature, and black clothes. They also had a grand jury subpoena for one of the residents.
A few months later a fourth Olympia activist would receive a subpoena, and other accounts of FBI harassment in the region would circulate.
None of the people had any obvious reason to be targeted. It seemed that anyone who had taken part in protests, been involved leftist organizations, or were part of anarchist social circles could have reason to worry.
Olejnik appeared before the grand jury in September 2012, and says the prosecutor asked her four questions about May Day: Was she there? Did she know anything about what happened? Was she in Seattle the week before or after? Had anyone discussed the May Day events with her? She answered no to all of these.
For the next 45 minutes, the prosecutor showed her pictures of people and asked for their names, who they were friends with, and their political affiliations. Each time, Olejnik responded, “I refuse to answer that question.”
“It got to the point where the grand jurors were laughing hysterically because the prosecutor just kept asking me basically the same question but with a different name, and I was like, ‘I’m not gonna answer that.’”
When the prosecutor finally relinquished, Olejnik had 20 minutes before her contempt hearing. She had a lot of supporters at home, but had asked that only a few friends be present with her that day. She hung out with them in the courthouse, knowing that she would soon be going to prison.
She was under no illusion regarding the seriousness of her decision. Rather, she says, it was the hell she believed prison to be that motivated her refusal to cooperate. “I knew that I wouldn’t be able to live with myself if I did anything that put anyone into that position.”
Matt Duran’s experience as a resister was similar, though in his case the prosecutor gave up after about 10 minutes. “It wasn’t a light decision to make, but it was something I knew I had to do,” Duran says. “No one wants to go to prison. But I wasn’t going to roll over for the government and be a tool for them to prosecute somebody. That’s just not something that’s in me.”
The Cost of Resistance
Duran says that on his first day at the Federal Detention Center in SeaTac, Washington, when the guys in his unit found out why he was there, they took up a collection and presented him with a bag of food and toiletries along with the explanation, “We take care of each other.”
Olejnik, in the women’s unit at SeaTac, quickly became a part of the unit community. “What happens is people realize that all we have is each other and we’re sharing this horrible experience, so let’s work together to make this a little bit better.”
She taught other women math and reading and led an exercise crew. A lot of the women in her unit were mothers, and with only 300 telephone minutes per month at astronomical rates, many struggled to facilitate custody arrangements and remain a part of their kids’ lives.
After three months Duran and Olejnik were torn away from the support networks their units provided, when they were both placed in solitary confinement.
After questioning the Bureau of Prisons, their lawyers learned that the two were in solitary as a “protective measure.” A protest had taken place outside of the prison in support of Duran and Olejnik and in response the prison went on lockdown for six hours. Supposedly prison administrators worried that other inmates would blame the resisters for the lockdown and would retaliate against them.
That, says Olejnik, is unlikely. “Everyone in my unit was super down with the protests happening. They were super excited that someone in their community was getting that type of support from the outside.”
Once in solitary, they were completely cut off from human contact. Duran’s cell had a shower, which he would leave running to heat the 40-degree cell. Olejnik says her health failed miserably while in solitary. She lost consciousness twice and stopped menstruating altogether.
“When you’re in solitary confinement there’s a panic button in your cell,” she explains. “But even if you can hit it, it takes about 15 minutes for someone to come open the door. So people can die, and do die there. They don’t run fire drills for anyone who’s in solitary confinement. You get to this place, mentally, where it’s like, if there is an emergency, if there is an earthquake or a fire, you are going to die in your cell. Basically being resigned to your death, it’s horrible. It’s torture.”
On top of the physical isolation, other forms of communication were extremely limited. Their 300 phone minutes were reduced to one 15-minute call per month, and even that was considered a privilege that could be revoked. They were allowed to write with pens made out of a special rubbery material, but the prison often ran out of them.
Despite limited communication with their lawyers, they formed a plan. Kaplan and Duran’s lawyer decided to make a case to the judge that as a coercive measure, incarceration was not working. If their clients continued to be incarcerated, it was punitive, which is unconstitutional in a case of civil contempt.
Duran and Olejnik wrote lengthy declarations describing their political beliefs and their determination not to cooperate. Their parents, friends, and employers wrote declarations as well, stating that not only was prison failing to induce them to cooperate, it was strengthening their resolution not to.
On February 28, a district court judge issued a ruling acknowledging that, “Their physical health has deteriorated sharply and their mental health has also suffered from the effects of solitary confinement,” and, “Whatever the merits of their choices not to testify, their demeanor has never given the court reason to doubt their sincerity or the strength of their convictions.”
He ordered their release no later than the following day. On February 28 of this year, after more than two months in isolation, Olejnik and Duran went home. A short time later, Jerry Koch would find himself facing the same nightmare they had just escaped.
Staying Silent, Staying Strong
Not as much is known about Koch’s experience over the nearly four months he’s been in prison. It took two months for Amanda Clarke to get visitation rights so she’s only seen him a few times. She recently received a phone call very early in the morning. It was Koch, letting her know he was okay. The prison had been on lockdown for several days so calls in and out were not allowed.
Clarke, 23, is working full-time as a paralegal and struggling to keep enough money in Koch’s commissary account and pay rent for the apartment they moved into two weeks before he was taken away.
The Jerry Resists website recently posted a statement Koch wrote from inside:
“The federal grand jury that put me here is only the most recent facet of an assault on those who wish to be free of state surveillance and intimidation. This legal onslaught has already targeted and claimed the freedom of many anarchists, but we will keep fighting. I will keep fighting. My politics, principles and ethics stand in direct opposition with this legal tool that is used to further enable the government in its assault on anarchists, and I will not lend it any legitimacy, nor will I comply in any way.”
As the days slowly pass for Koch, ticking their way toward the 18-month mark, the FBI continues its reign of intimidation in New York City, knocking on doors, questioning and threatening. While its strategies have very real, devastating effects on people’s lives, it isn’t working entirely. It isn’t working to destabilize the radical communities; it isn’t working to dissuade activists from doing their work or turn them against one another in fear and suspicion.
Olejnik and Duran say their ordeal made their community show its strength. As soon as they were subpoenaed, people within activist circles, as well as from other networks in Olympia, rallied and have sustained an incredible level of support. Fundraisers covered their legal expenses and ensured they had money while they were in prison. Hundreds of letters of support helped them withstand the duress of prison life. They had friends ready to help when they were released. Olejnik’s employers ensured that her job would be there for her whenever she was ready to go back to work. Local therapists even offered free services.
Duran says this gives him hope that when the FBI shows up again, instead of withdrawing in fear, “It’s now possible that people will think, ‘Well [the grand jury resisters] got that much support, so if something happens to me, I will get that support too.’”
“I have come to believe that prison walls are not there solely to keep the people inside in, they’re there to keep the outside world out,” Clarke says. “They’re there to keep me and you and anyone who wants to support a prisoner as far away as they can keep them, to alienate people, to really isolate them. Every letter that people that write, no matter how short, counteracts that a little bit.”
Koch’s supporters hold regular letter-writing sessions and have toured cities across the US, giving presentations to raise awareness about Koch’s case as well as grand juries and FBI suppression in general.
There is also potential for resistance through official channels. In 2012, the Congressional Research Service authored a report encouraging lawmakers to hold hearings on the issue of the FBI treating political activism as a domestic terrorist threat. No hearings have taken place, but the report sets a precedent for people to pressure their representatives to follow through on its recommendations.
As more people become aware of the witch hunts grand juries enable, those who have been through the system hope that communities of all political persuasions will be empowered to push back. If Matt Duran, Katherine Olejnik and Jerry Koch could sacrifice so much, then everyone has it within themselves to try.