The WikiLeaks Grand Jury

Thursday 28 March 2013

As Alexa O'Brien reported Tuesday, the US Department of Justice has provided the latest confirmation that the grand jury investigation into WikiLeaks remains currently ongoing. That means it has been actively investigating the whistleblower website now for at least about 26 months (the Guardian first reported back in January 2011 that a subpoena seeking data on WikiLeaks had "appear[ed] to confirm for the first time the existence of a secret grand jury" empanelled to investigate individuals associated with the organisation. Prior to that, in late November 2010, the White House confirmed that there was an "active, ongoing criminal investigation" into WikiLeaks. And in July 2010, the Department of Defence stated that it had requested that the FBI help with an investigation related to WikiLeaks disclosures and that it "go wherever it needs to go").

I've been doing a bit of reading on grand juries, and the time-frame is significant because they do not have an indefinite lifespan. US law states that:
The grand jury shall serve for a term of eighteen months unless an order for its discharge is entered earlier by the court upon a determination of the grand jury by majority vote that its business has been completed. If, at the end of such term or any extension thereof, the district court determines the business of the grand jury has not been completed, the court may enter an order extending such term for an additional period of six months. No special grand jury term so extended shall exceed thirty-six months, except as provided in subsection (e) of section 3333 of this chapter.

From subsection (e) section 3333:

A special grand jury term may be extended by the district court beyond thirty-six months in order that such additional testimony may be taken or the provisions of subsection (b) of this section may be met.

And this from the American Bar Association's riveting Handbook on Antitrust Grand Jury Investigations:

The district court may extend the term of the special grand jury to a total of 36 months... The special grand jury may continue even beyond 36 months if it issues a report, and if the district judge determines that additional testimony is necessary, or that the report needs to be rewritten to comply with the governing statute.

So this means that the WikiLeaks grand jury seems to have been granted at least one six month extension thus far, as it has definitely exceeded the 18 month period already. It also suggests that some time between July this year and January 2014 — about four to ten months from now — the grand jury will either have already wrapped up or it will be close to wrapping up as it reaches the somewhat flexible 36-month cut-off point (see an update on this below). Grand juries, for those unfamiliar with them, do not decide the guilt of a person or persons. What they do is take evidence and make a judgement on whether or not criminal charges can be brought (in the form of an indictment) — in this case against Julian Assange and others affiliated with WikiLeaks.

All things considered, I would expect that within the next year or so it will be crunch time for this long-drawn-out saga. It still seems as if it could swing either way at this point, but it is worth weighing up the influence the broader political climate may have. There is an atmosphere in the United States at the minute that seems to represent a growing fatigue with the punitive national security culture that became pervasive post 9/11. Recent court judgments have gone against the government on issues related to secret surveillance and covert drone strikes, and this makes me wonder whether the tides are changing — albeit only incrementally and to a small degree.

Choosing to prosecute Assange for his role as an editor in publishing classified documents, as if it needs to be said, would be an outrageous decision that would cause an almighty outcry from a cross-partisan range of organisations and in the process damage the standing of the United States globally. Even at the height of the Bush administration's jingoistic reign it would have been an extremely controversial call to make. So for Obama's Justice Department to pursue a prosecution in the months ahead, in an atmosphere that may be tangibly shifting against draconian policies, would be a doubly contentious act that could turn out to be politically kamikaze for Obama personally in terms of his lasting legacy. All of these things will surely factor into any final decision regarding a prosecution, which will no doubt be discussed at the very highest echelons of the administration. But first, of course, we will have to wait to see whether or not the grand jury determines that there are charges to pursue in the first place....


UPDATE, 1 April 2013: news editor Kevin Poulsen, who was himself once the subject of a grand jury investigation for hacking into computer systems, tells me: "When a grand jury is up, prosecutors can just roll the case into a new grand jury." Significantly, this means that the 36-month cut-off point is far more flexible than the law I cited above implies, because when the first grand jury runs out of time, a new, second grand jury can effectively take up the investigation and continue its work with a fresh timetable. Poulsen said this occurred in his own case ("I had two GJs in series. Prosecution had a law enforcement witness summarize all previous testimony for the incoming panel"). And the book Grand Jury Practice by Howard W. Goldstein suggests it is not an unusual occurrence. Goldstein notes that "given the increasing complexity of federal investigations, many are not finished before the grand jury's term expires," adding: "information developed in one grand jury may be relevant to another grand jury."

An additional point worth mentioning here is that, according to an analysis of grand jury statistics circulated by WikiLeaks:

it is extremely rare for a grand jury not to indict. In the year 2009, federal grand juries in the United States saw cases involving 69,245 suspects and voted to indict all but 20 of them. (This is denoted by "no true bill returned" in the document.) That is a approximately one in every three thousand five hundred suspects. These statistics are repeated year after year. Given that it is known that he is the target of a grand jury investigation, Julian Assange has in and around a 99.97% chance of being indicted.
Interestingly, the same statistics show that US attorneys declined to prosecute 29,780 suspects in 2009 for reasons such as "stale case," "weak evidence," "minimal federal interest," and "Department of Justice policy." These all sound like strong grounds to halt any future attempt to prosecute WikiLeaks staff for their publishing work — if and when an indictment eventually materialises.

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