Re: Drake Subpoenas Withdrawn!

From: Howard Engelskirchen (howarde@TWCNY.RR.COM)
Date: Wed Feb 11 2004 - 10:21:09 EST

Government Withdraws Subpoena for Records Relating to Antiwar Meeting at
Drake U.


The U.S. attorney's office in Des Moines has backed down from using a
subpoena to get information about an antiwar conference held at Drake
University last fall.

A federal judge on Tuesday ordered the subpoena withdrawn, following a
request by the U.S. attorney. He also lifted a gag order that had prevented
the university from disclosing what was in the subpoena or commenting on

The subpoena ordered the university to turn over to a federal grand jury
information relating to the November 15 meeting, including the identities
of those who participated and any campus-security records that would
describe what was discussed at the conference.

The meeting was arranged by the Drake chapter of the National Lawyers Guild
and was open to people in the community as well as at the university, but
was attended only by a small group, according to Sally B. Frank, a law
professor at Drake and the faculty adviser to its chapter of the lawyers

Subpoenas were also issued to four Des Moines-area antiwar activists who
attended the conference, ordering them to appear before the grand jury. The
subpoenas and gag orders -- called nondisclosure orders -- for the four
individuals also were withdrawn.

The abrupt and unusual turnaround by the U.S. attorney's office -- where
officials declined to comment on Tuesday -- surprised and pleased
university officials and their lawyers.

"It's a good outcome for the university and for the higher-education
community," said Steven Serck, a lawyer for Drake.

"Whatever one's views of the political positions articulated at that
meeting, the university cherishes and protects the right to express those
views without fear of reprisal or recrimination," David Maxwell, Drake's
president, said in a written statement. "The university in America is, by
definition, a 'free speech' zone in which dissent, disagreement and
multiplicity of views are not only tolerated, but encouraged."

University officials said they were not told why the subpoenas were
withdrawn. However, Ms. Frank said she believed it was because of the
refusal of the activists to be intimidated and the actions of the National
Lawyers Guild, which was not covered by the gag order. In addition to
speaking out in the news media, community antiwar activists organized a
rally of several hundred people outside the federal courthouse in Des
Moines on Tuesday.

"This is an incredible victory for free speech, for the Constitution," Ms.
Frank said in an interview. "This was aimed at the peace movement, but they
were using the university to get at it. It makes you wonder what's
happening at other universities." She said the lawyers guild planned to
call for a Congressional investigation of the situation.

David Goldman, a lawyer for Ms. Frank, said he believed the move to
withdraw the subpoenas was made as "damage control." The idea of making a
university cough up records is not taken lightly, he said.

The Federal Educational Rights and Privacy Act restricts a university's
ability to release student information to third parties unless individuals
are informed that their records have been requested. One exception is a
grand-jury subpoena.

Because of the gag orders, university officials and lawyers were initially
unable to express their concerns about the subpoenas, so members of the
National Lawyers Guild and the American Civil Liberties Union did it for

"The government has no business investigating legal conferences held in
academic institutions," said Michael Avery, president of the National
Lawyers Guild and an associate professor of constitutional law at Suffolk
University Law School, in Boston. He called the subpoenas and the gag
orders "outrageous."

The case garnered interest from legal scholars and activists around the
country and coverage from local, regional, and national news media. Members
of the Iowa Congressional delegation, including Sen. Tom Harkin, a
Democrat, questioned the government's tactics.

Some legal experts said they had not heard of such a case involving a
university in recent years, and said it took them back to FBI surveillance
of protests during the Vietnam War.

Attorneys for the university had informed the U.S. attorney's office in Des
Moines on Tuesday that they intended to ask the judge to quash the subpoena
today. But the prosecutor responded that he was asking the judge to
withdraw it. However, since the deliberations of a grand jury are secret,
the investigation of the meeting may not yet be over.

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