Fighting Subpoenas and Gag Orders in Iowa
— Iraj Omidvar
MORE THAN TWO months have passed since federal officials withdrew the grand jury subpoenas against four peace activists and Drake University in Des Moines, Iowa. The withdrawal of the subpoenas and the gag order against Drake came amidst a firestorm of protest, not only from progressive and civil liberties lawyers and peace and justice activists from around the state and the country, but also from mainstream news media and elected politicians from both parties.
Iowa peace organizations quite rightly find cause for celebration. As Brian Terrell, Executive Director of Catholic Peace Ministry and one of the four subpoenaed activists, declared in front of the Federal Courthouse on February 10, the government's retreat was historic.
But there remains room for serious concern. Undoubtedly, federal and local law enforcement officials went about their jobs incompetently, as judged by their own stated objectives. Of course there is little comfort to be drawn from that fact.
In May 2002, Attorney General John Ashcroft eliminated regulations prohibiting federal law enforcement agencies from spying on domestic opponents of government policy, as was done under the COINTELPRO program during the 1960s and `70s.
There is a danger that recent events here and elsewhere may have been, if not conscious attempts to silence activism in Iowa outright, then perhaps the first inept efforts by out-of-practice federal officers and attorneys to revert to some old COINTELPRO tactics.
The events in Des Moines also come at a time when administration policies from international relations and Iraq to domestic economic plans are coming under increasingly bold attacks by mainstream politicians, journalists, and even scientists. Repressive measures often become necessary when spontaneous support for government policies diminish.
Thus the events in Des Moines may also mark the beginning of a new approach based on more direct forms of intimidation for keeping opponents of government policy in line. The contrast between the competence of peace organizations in Iowa with the marked ineptitude of government officials may offer rare glimpses into broad strategies and local techniques for protecting civil liberties when non-violent activists are confronted with repressive government actions. First, a review of the facts.
On November 15, 2003 the Drake University chapter of National Lawyers Guild hosted an antiwar forum. Information about the forum was distributed to the media and the police. A crew from at least one TV channel was present. In one segment of the forum, activists discussed plans for an act of non-violent civil disobedience—crossing the perimeter of a National Guard base nearby the next day.
For the organizers and many attendees, the planned non-violent civil disobedience was routine. In several similar actions in the past as in this one, not only were the police and National Guard always informed of the events, but the exact location of the perimeter was determined through discussions among the activists, police and National Guard.
The people involved are well known to the local media, the police, the National Guard, elected representatives, and the courts. The activists who had in the past crossed the Iowa National Guard perimeter routinely received $50 fines, very short community service, or one-or-two-day jail sentences.
Everybody knows that the purpose behind these activities is a carefully choreographed public performance designed to demonstrate opposition, to bring the issues of war, international law and civilian casualties to public attention.
With the November 15 forum as well, everything was routine, except that—as organizers and the public learned later—the forum was attended by two undercover agents.
The November 16 CD
On November 16 some seventy demonstrators, who had previously obtained authorization to gather outside the National Guard base, showed up. They were met with thirty-eight officers. An officer read a statement six times explaining that crossing the perimeter would result in arrests and showed the perimeter.
Sally Frank, the National Lawyers Guild attorney whom demonstrators had brought along, thanked the officer. Demonstrators then had a last discussion, and ten demonstrators held hands and walked slowly towards the perimeter. One by one, they were arrested.
One demonstrator, 47-year-old librarian Chris Gaunt, "went limp." She was handcuffed in the back, carried to a police vehicle, and laid down. According to Frank, Gaunt complained that she was in pain and tried to sit up, but moving her legs to lift herself, she felt contact with an officer who then apparently stepped back, tripped and fell.
Around that time, less than a mile away, another demonstrator, Elton Davis, walked to a guard at another gate of the base. According to The Des Moines Register, he asked to "speak to a commanding officer." Here is the Register's account:
"'I told him I was there to establish an ongoing presence at the base,' Davis said. `I would like to occupy the base. I would like his help with accommodations, would like an office . . . to work with the command authority to bring home people who were trapped in Iraq by a failure of foreign policy. At which point he almost fell down laughing.'"
The event was videotaped by demonstrators, and everything was routine, again, except for a few details: For one thing, among the officers at the event, seventeen from the Polk County Sheriff's Office were wearing full riot gear, or as a police document shows, "tactical ballistic vests and helmets."
For another, two demonstrators who accidentally crossed the perimeter were arrested. Later, Chris Gaunt, who had "gone limp" during arrest, was charged not only with resisting arrest, but "kicking a sheriff's deputy in the knee." A spokesman for the sheriff's office speculated that the kicked officer may have a "dislocated kneecap."
Subpoenas and Response
On February 3, Detective Jeff Warford, identifying himself with his business card as a member of the Polk County Sheriff's Office-FBI-Joint Terrorism Task Force, delivered a federal subpoena to Brian Terrell to testify before a federal grand jury on February 10. Three other activists as well as Drake University were also subpoenaed. The Drake subpoena asked for security records as well as records of attendees and organizers at the November 15 forum.
About this time the peace and justice community in Iowa began to mobilize.
On February 4, in an Iowa State University debate with Ben Stone, president of the Iowa Civil Liberties Union, Stephen O'Meara, U.S. Attorney for the Southern District in Iowa responsible for the subpoenas, mentioned the November 16 action. O'Meara characterized the episode in which Gaunt's legs contacted an officer while trying to sit up in the police vehicle as follows: "public record will show that a deputy sheriff was severely kicked and has suffered serious injury to a knee."
On February 5, federal attorneys persuaded a judge to issue a gag order for the entire Drake University regarding the subpoena. On February 6, the Iowa Civil Liberties Union entered the case with plans to represent one of those subpoenaed, and demanded to know if the subpoenas were issued under the provisions of the Patriot Act.
By February 7, federal attorneys were still silent about why they wanted information about the November 15 forum. By this time, however, a local TV news channel had covered the subpoenas. And reports based in whole or part on an Associated Press item were being circulated widely in the national and international news media: Guardian, Salon, ABC News, Fox News, The Atlanta Journal Constitution, Seattle Post Intelligencer, The Herald News and many others.
In the following days The Los Angeles Times, The New York Times, CNN International, The Boston Globe and The Miami Herald, among others, also covered the events. Iowa's congressional delegations had also begun to weigh in. According to published news reports, Senator Harkin (D) and Congressmen Boswell (D) and King (R) expressed concern to the media.
Harkin wrote a letter to the Attorney General and stated to the media that the subpoenas reminded him of the Vietnam era, when "protesters were rounded up, when grand juries were convened to investigate people who were protesting the war."
Boswell, who is on the House Intelligence Committee, expressed frustration with Ashcroft's increasing "disregard for explaining the actions of the Justice Department to the public." And King noted that significant resources were being used to investigate a minor event and promised to "be asking questions."
Editorials from across the country expressed astonishment and outrage.
On February 9 Bruce Nestor, a Minneapolis attorney for the National Lawyers Guild, filed court papers demanding an explanation of the purpose of the investigation into Drake records. The Register quoted Nestor as saying, "To the extent that the grand jury is being employed for the purposes of . . . intimidating and harassing supporters of the peace or anti-war movement, the grand jury has clearly overstepped its authority."
After a week of silence, the first sign of retreat by federal officials appeared when the grand jury testimony was postponed to March 9., and federal and local officials declared subpoenas were not related to "anti-terrorism investigation" under the Patriot Act.
So what was being investigated?
O'Meara is quoted in The Register as having said that "the investigation focuses on unlawful entry onto military property at Camp Dodge on Nov. 16, and whether plans were laid for that at a conference the day before at Drake."
Stated FBI spokesman Jeff Tarpinian: "The United States attorney emphasizes that the investigation regarding any attempted breach of the security fence at the Iowa National Guard Base is dangerous both to the person or persons attempting to breach the security fence, as well as a legitimately perceived danger to the base itself."
Frank explains that O'Meara's press release distributed right at press time refers to a person who "attempted to penetrate the outer perimeter fence," which in The New York Times became a person who had "tried to scale a security fence." It took a while for even people following the news to understand that these ominous sounding words referred to Elton Davis walking to the guard at another gate of the National Guard base during the November 16 event and cracking him up.
On February 10, some 150 Iowa activists led by the American Friends Services Committee gathered in Des Moines to protest the subpoenas and gag order.
During the rally, Terrell announced the historic news that the subpoenas had been dropped. Later people learned that the gag order as well had been dropped. Several television news channels attended, and reporters covered the rally and Terrell's announcement.
Strengths and Isolation
Peace and justice activism in Iowa has a long history. And there was an extraordinary outcropping of small peace groups after 9/11 and then after the administration's leaked Nuclear Posture Review, which promotes policies of pre-emption, creation of small nuclear weapons, first-strike of these so-called mini-nukes even against Third World countries, and permanent military supremacy.
These newer groups were alarmed at the ease with which the Patriot Act was passed in Congress. They were appalled with how Democratic members of the Iowa Congressional delegation, including liberal stalwarts like Senator Harkin, who was in a reelection campaign, voted for the resolution to authorize war on scant justification even without United Nations sanction.
The backbone of the activist groups has been at it for decades. These activists have a wide range of interests and histories: members of various religious denominations, lawyers, socialists, labor activists, and students and faculty.
In Iowa an organization that has played a central role in coordinating activities is the American Friends Services Committee, which has hosted several statewide activist congresses, offering workshops and brainstorming sessions.
What these Iowa activists have in common is commitment, calmness, prudence and historical perspective. Perhaps most important, they are tenacious. Several activists arrested in November have been in many other acts of non-violent civil disobedience around the country, and some have served sentences.
Among the newer groups, for example, at Iowa State University in Ames, Time for Peace, a student peace group, started holding vigils every Sunday for civilian victims of war almost immediately after the first bombs began falling on Afghanistan. They kept at it for two years, every Sunday, in Iowa's sultry summers and terrible winters. Over time, they expanded the vigils to Sundays and Wednesdays and then to a very prominent location on a thoroughfare.
They kept at it even after the pro-Iraq-war propaganda was at its height with flag-waving counter demonstrators and cars screeching in front of peace rallies, and fire crackers going off. Jon Meier, a member of Time for Peace, walked from the Midwest to Washington, DC to bring attention to the problems with current American foreign policy.
Unfortunately, these strengths should not be overstated. Before Democratic presidential candidates Kucinich, Dean and Sharpton showed up on the national scene and began asking questions, Iowa peace groups were isolated from the larger public. Mainstream national and state media were tagging along with the administration's rush to war.
Here in Iowa, hardly any questions were being asked about the Patriot Act. The Register and other media were barely covering peace rallies. Involved in a campaign and caught in the administration's cynical push for a vote authorizing war before the midterm elections, Senator Harkin was muted.
Other members of the congressional delegation, with the notable exception of Congressman Jim Leach (R) whose district houses some of Iowa's most outspoken peace groups, were almost entirely silent.
Iowa peace and justice groups have many strengths, but their relative isolation from the public has always been a serious threat. And the events in Des Moines could have easily pushed them below the radar again and cost them the respect and publicity they had slowly built in the state.
Public Universities, the Weak Link
In the years after 9/11, the big public universities in the state have been subdued. Committed, politically active faculty have been few. And during the recent events in Des Moines, the silence of the faculty and presidents of major public universities was particularly disturbing.
Even in departments purportedly dedicated to critical theory with the latest post-something readings of contemporary culture, there was hardly a peep. In my department, students have been reading glosses of French theorists whose works, although strongly influenced by Paris student uprisings of 1960s, are interpreted as a call for "localized resistance" to structures of power, preferably in the form of articles published after tenure in disciplinary journals.
This is an interpretation that Trotsky might have called "verbal radicalism, a policy of irreconcilable formulas which ... sanction inaction under the cloak of extremism."
The silence of most members of the faculty in large public universities about assaults on the fundamental democratic institutions of the country raises profound questions about the intellectual health of the academy in Iowa.
Ironically, mainstream reporters and politicians seemed to have a clearer understanding of the significance of the subpoena and gag order against Drake than did the presidents, faculty and students of Iowa's public universities.
Sally Frank and reporters of a March 5 article in The Chronicle of Higher Education correctly note that much of the publicity and outrage surrounding the events in Des Moines came when Drake University was dragged in.
Drake happens to have a law school, and according to Frank, the dean of the law school, who had been away at a conference, understood immediately after his return the dangerous implications of the government's legal moves and pressed for rejecting government demands. The university had originally leaned towards submitting to government demands.
Terrell and Frank argue compellingly that the events surrounding the subpoenas and the gag order against Drake can be explained best from the framework of the Patriot Act.
Why else call for grand jury investigations of misdemeanors? Why place the entire Drake University under a gag order? Why send a sheriff deputy to deliver a federal subpoena? All evidence points to the conclusion that the police were not pursuing a misdemeanor, but a felony, something that can be done under the provisions of the Patriot Act.
But of course, for the provisions to be applied, Gaunt's contact with an officer must be characterized as a police officer being "severely kicked," and Davis's walk to a guard at the gate of the National Guard base has to be characterized as an attempt "to penetrate the outer perimeter fence."
Brian Terrell considers the greatest danger lurking in the actions and statements of the police the "fuzzing" of legal boundaries. He points out that if what we did can fall under the provisions of the Patriot Act, then not just demonstrations but Drake student activities, attendance at meetings and donations of money can be considered forms of "terrorism."
The Critical Lessons
As legal boundaries become attenuated and as the Bush administration begins to experience stronger public opposition to its policies, activists inside and outside Iowa should seriously consider what worked and didn't work in Iowa.
Perhaps the most important lesson is this: Federal and local officials were able to even contemplate engaging in the at-best questionable choices they made because they profoundly misunderstood the strength of the links Iowa peace and justice activists had forged with the public, news media, the Iowa delegation, the legal system, and colleges.
An important conclusion may be that government authorities should be made perfectly cognizant of this strength. Perhaps activists have to be not only visible but constantly pushing colleges, news media, and democratic institutions to take public positions regarding civil liberties, war, equity, etc.
A key strength of peace activism in Iowa is that activist groups have succeeded in working together in broad coalitions (there are probably more than a hundred small and large peace and justice groups in the state).
Activists such as Kathleen McQuillen, the Iowa Program Director of the American Friends Services Committee, who focuses on coalition building, have been crucial to the development of the peace movement. The benefits of Iowa peace conferences that AFSC has helped organize go far beyond coordinating actions; they provide activists with opportunities to see connections among various causes, connections that contribute to a broader sense of community.
Finally, Sally Frank of the National Lawyers Guild emphasizes the need for greater preparedness. She believes authorities could have been far more effective in silencing the media and opposition by, for example, obtaining the gag order at the same time they did the subpoenas.
Frank's account of how she was able to get the news out during the short window of opportunity after the subpoenas were received and the gag was issued is sobering. According to her, the success of the activist groups had a lot to do with the fact that they prepare themselves meticulously, especially legally, for their non-violent peace activities. Preparations can range from taping of rallies and of interactions with the police to legal training.
Aftermath: March 20 and 21
The largest demonstration in Des Moines right before the Iraq invasion attracted around 500 people. But the extent of the failure of the federal government's efforts to silence peace and justice groups in Iowa was in full display on Saturday, March 20th, when about 900 people filled Drake University's Olmstead Center to listen to well-known activists such as Tom Hayden.
Later in the day, an estimated 1,500 people took part in an antiwar rally in the city. And the next day, eleven people were arrested for crossing the National Guard boundary. All in all, Iowa peace and justice activism is more energized than ever.
More important, having had a taste of what the government is capable of doing, Iowa activists are far more alert and determined to be better prepared. Activist groups outside Iowa would do well to take very seriously what happened in Iowa and prepare.
Iraj Omidvar is a graduate student at Iowa State University and an activist with the Alliance for Global justice, one of Iowa's many grassroots antiwar organizations.
ATC 110, May-June 2004