Subpoena surprise: Fred Thompson comes knocking.

Author:Lynn, Barry
SUMMARY

The subpoena issued against the member of the American United for Separation of Church and State (AU) is construed as a fishing scheme to divert the attention of the AU from pursuing its advocacy concerning church and state separation. The order lacked some legal basis and specificity. The head of the AU has pointed out that the organization has never violated federal campaign law.

 
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At first I thought it was just an office prank. AU Legal Director Steve Green came up to my office and said a federal marshal with a subpoena from the U.S. Senate was in the lobby.

Sure.

I went downstairs expecting to find a man in a gorilla suit with a bouquet of balloons as a belated birthday gift. I told Steve to have somebody bring a camera.

But there in the lobby stood a man who looked like a stereotypical U.S. marshal in a movie where the government serves notice on an organized crime lord. He flashed a badge -- and it soon became apparent that he was a real marshal and he had a real subpoena from Sen. Fred Thompson (who played stereotypical political roles in movies before getting elected to the Senate in 1994). Thompson is chairman of the powerfu] Governmental Affairs Committee investigating campaign irregularities and foreign money contributions in the 1996 election.

The first thought that popped into my head was, "What is this guy doing here? Did he come into the wrong building?" I don't even look like a gangster, a wealthy influence peddler or a Hong Kong businessman. But the subpoena had Americans United's name on it. I signed for it and went into our conference room for a quick read.

It is an extraordinary document. It demanded that by August 22, 1997, Americans United deliver every piece of paper we produced during 1995 and 1996 that related to our involvement in election campaigns. That's easy -- there aren't any.

But the subpoena also demanded all our documents about "publicly debated issues." Here's where things get tricky. I can understand why the committee might have an interest in political involvement by non-profit groups. By law, Americans United and other non-profits are not permitted to intervene in partisan elections. But we have not done that -- or even anything close to it.

But this business about "publicly debated" issues throws me. Americans United has every right, as an issue-based organization, to generate this type of information. It's why we exist. We are lawfully permitted to alert our members and the public to legislation posing a danger to church-state separation. We are permitted to advocate for church-state separation. However, internal documents about issue strategies, correspondence with individual AU members or members of Congress or materials never released publicly should not be open to the prying eyes of a Senate committee.

Over the next few days, I got a quick legal education in the Kafkaesque world of congressional subpoenas. The bottom line: You have far fewer rights than you would in a court of law. It is exceedingly difficult to meaningfully challenge the breadth of your subpoena or claim any privileges -- such as a lawyer-client privilege -- to withhold documents.

If the committee wants something and you don't give it up or answer the committee's questions, you can be held in contempt of Congress. Only as you are packing your toothbrush for the federal penitentiary can you then file a lawsuit and make your case before a federal judge.

As for rules to determine who is called to give evidence to these committees, they are equally non-existent. Forget "probable cause" that a crime has been committed, or "reasonable suspicion" of unlawful activity -- statements familiar to viewers of Court TV and police movies. The Senate committee counsel freely admits they have absolutely no evidence to suggest that AU has done anything improper and that they "don't know what we're looking for until we see it."

Essentially, this is a world-class fishing expedition. What made the committee zero in on Americans United? The counsel noted that we are mentioned in the media a lot. In other words, if we do our job well, we will be noticed and set up for harassment.

But it gets even worse. One Democratic staffer said AU was subpoenaed as a way of "extracting revenge" after committee Democrats put the Christian Coalition on the list of non-profit organizations to investigate. Ironically, we have been reporting on what we think is unlawful Christian Coalition activity for years; yet even CC leaders have never said we do anything illegal.

We have obtained counsel from a well-known Washington law firm. They will try to convince the committee that it is improper to subject Americans United to such extensive and intrusive demands for material about quintessential. First amendment protected activity.

We have nothing to hide, but we do have real work to do. We could spend weeks fulfilling the demands of a political vendetta. On the other hand, providing nothing will not allow us to clear our name and, if held in contempt, we would have to expend vast resources on legal maneuvers.

I tend to believe that the federal government is more a friend than an enemy. I'm no conspiracy theorist who finds plots against politically controversial groups and individuals around every corner. However, the abominable practice of going on a taxpayer-funded witch-hunt against perfectly lawful activities is just the kind of political abuse of power that drives people in those directions.

I'll keep you posted on developments. For the time being, all Americans United members can take some solace in being associated with a group so competent that our opponents will stoop to these shameful tactics to badger us.

Barry W. Lynn is executive director of Americans United for Separation of Church and State.

The epidemic proportions of childhood sexual abuse in the United States, including the commonplace nature of incestuous abuse, were brought to the public's attention starting in the mid- to late 1970s and early, 1980s with such works as Sandra Butler's Conspiracy of Silence (1978), Florence Rush's The Best Kept Secret (1980), Judith Herman's Father-Daughter Incest (1981), and many more. An important aspect of these findings about childhood sexual abuse was the realization that a significant number of adult women and men had actually forgotten or repressed memories of childhood sexual assault that could be recalled or "recovered" either spontaneously or during the process of therapeutic treatment (Bass and Davis 1992; Herman 1992; Waites 1993).

However, since the mid-1990s the idea that recovered memories are either patently false or induced by the therapeutic process itself has begun to gain popularity and credence (see Cunningham nd.; Haaken 1996).(1) In media shorthand, this is termed the "problem" of "false memory."(2) According to a source in Networker, a professional therapy Journal, "By the end of 1994, more than 300 articles on `false memory' had appeared in magazines and newspapers" (Butler 1995, 37).(3) While some of these articles take a measured tone, others tell sensationalized stories of families being sundered by a daughter's "false" accusations against her father, or of families snuggling to come together again after a daughter's retraction of incest charges (Watters 1993; Begly 1994, 2D-3D; McCarthy 1995). A number of these newspaper and magazine stories originate with the False Memory Syndrome Foundation, an organization of parents formed to combat their children's incest and abuse charges. This organization, listing four thousand members, forty-eight chapters, and an annual budget of $700,000 (Butler 1995), defends accused perpetrators and denies the validity of recovered memories through a coordinated media campaign that includes advertising, a newsletter, and the dissemination of news reports about "false memory."(4)

Professional studies disputing recovered memory have also begun to be written and reviewed -- the most notable being The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse by Elizabeth Loftus and Katherine Ketcham (1994) and Making Monsters: False Memories, Psycho therapy, and Sexual Hysteria by Richard Ofshe and Ethan Watters (1994) (see also Pendergrast 1994). The recent Frontline documentary, Divided Memories by Ofra Bikel,(5) while ostensibly balanced in its investigation, "makes its point" (Goodman 1995, B6) against the credibility of recovered memory by contrasting fringe therapists who regard past life regression and recovered memory in the same light (and are supportive of both) with more conventional experts who question the premise of recovered memory Denouncements of the therapeutic "incest industry" abound, attributing to feminist therapists financial and personal motives for planting incest memories in the minds of (mainly) daughters, whom the parents regard as deluded victims of the therapists' manipulations.

While the majority of these representative and mainstream pieces stop short of denying the existence of actual incest in epidemic proportions, all are far less concerned with addressing that criminal reality than with discrediting what the most serious and scientifically legitimate among them would likely acknowledge to be the minority of cases in which the incest exist only in fantasy form.(6) As Judith Herman has written, "Repression, dissociation, and denial are phenomena of social as well as individual consciousness" (1992, 9).

Although I find it likely that some reports of incest and/or recovered memory are untrue, or untrue in large part, the breadth and vehemence of their denial are indicative not only of an antifeminist backlash at work but also of an unproductive rejection of any possible relationship between fantasy and historical truth. Fantasy and truth, I argue, may, and do, go hand in hand.

The temptation is to combat the denial of recovered incest memory by turning to what Michael Frisch calls the "supply side" approach to public history: we need facts, lots of them, to prove beyond a doubt that incest was and is an abuse of epidemic proportions or that the Holocaust, horrifically, took place; lees not worry about the possibility that history is "structured, variable, and problematic" or about "the relationship between history and the process of memory" (1990, 15-16). The idea that "physical residues of all events may...

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