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Chelsea Manning jailed for contempt of court (thehill.com)
155 points by jbegley 14 days ago | hide | past | web | favorite | 139 comments



Anecdotally by the same judge who ordered a $5,000-a-day fine to Ladar Levison from Lavabit, back in 2013, until he provided the SSL private keys in electronic form (originally he printed them in 11 pages of 4pt text).


I remember the day I tried to get my mail, it didn’t work, I went to the website and saw that cryptic message. Then a few days later... The news broke about Snowden.


I wonder how far you can take the "electronic form"...

Could you compress it, base64 it, hex encode it, then base64 encode it again (this time URL-safe), then hex encode it, etc? I wonder what kind of response that would elicit heh.


Spoiler alert: the judge will not be amused.

Indeed. If your goal is just to make the judge more pissed off and more likely to take it out on you, this is a great approach.

If your goal is to help yourself, please don't do this.


The expert would say, "these keys don't work". Then the judge says, "you will remain in contempt until you provide working keys".

That would still take only a few seconds for a reasonably competent investigator to reverse?

A PDF of a low quality scan (without OCR!) using a cursive font is electronic... (I figure they court was a bit more specific than just requesting 'electronic'... surely?)

What kind of key is that long?


He printed all of the keys together so as to make them unreadable.


[flagged]


What? Ordering the person to turn over the information in a useful format is a way more sensible plan than OCRing it from text.


It was clearly a punishment for acting like a petulant child.


It's worth noting that Levison may not have been handing over written keys as an act of protest/petulance/whatever, but as a delaying tactic. He'd been looking for legal aid (and failing, because under a gag order he couldn't request non-attorney help finding it), and was in court without representation. Levinson was ordered to produce keys on August 1, and did so on paper August 2. It took until the 5th to get together a contempt charge and an order to surrender digital keys by the 6th.

Honestly, the alternative doesn't make much sense. If he just provided paper keys as a final insult, expecting them to be used, why shutter the entire service when someone called him on it? Why then wait two days past the start of the fines to pull the plug?

I'm not surprised that Levinson caught a contempt charge for printing the keys, although it's pretty ugly if he's right in his claim that he was denied a hearing to contest the charge, then denied appeal for his failure to contest it. But doing so seems less like a move to irritate people than a way to drag out the process without naked defiance.


Secret Grand Juries have been used to prosecute activists for decades now. In fact, there's been a historical movement to do exactly what Chelsea is doing and resist them.[0] I have a friend who did just this and was held in contempt for a year or so.

What's odd about Chelsea's case is that she's decided to _refuse_ to testify straight up. Normally, various resistance activists would have a statement of resistance that they would answer to any of the questions that the Grand Jury would have.

To give some insight on Grand Juries, you're not allowed to have a lawyer present during questioning and you _must_ answer the question or be held in contempt. They've been used to violate our rights for decades now.

0. http://grandjuryresistance.org/


> They've been used to violate our rights for decades now.

Which rights would those be? The obvious "right", the 5th Amendment, only applies to self-incrimination. The government has the power (AND SHOULD use that power) to compel witnesses to testify about crimes they know about.

If you are a witness, you have a duty to testify what you know. In this particular case, Manning has full immunity, so she can't harm herself with any statement (thereby protecting her 5th Amendment rights).

The less obvious right: 1st Amendment, is somewhat broken. But its necessary for Grand Juries to work at all. The entire case cannot be officially filed until the Grand Jury says there's enough evidence for a Trial to begin. To protect the innocent, the details of Grand Jury proceedings are kept secret (if the Grand Jury torpedoes the case, the case will remain a secret forever and no one will even know what the Government was accusing anyone about).

In essence: Grand Juries protect the innocent from false court cases from the US Government. That protection only works if all involved in a Grand Jury is sworn to secrecy.

EDIT: Through other discussion, it seems like Manning is 1st, claiming 4th (search-and-seizure) and 6th Amendment rights (speedy trial), none of which make sense to me at all. Manning isn't at trial here, she's being held in contempt for refusing to testify. That's very standard.


> Which rights would those be? The obvious "right", the 5th Amendment

...includes the right not be prosecuted for serious offenses without a grand jury indictment. The first clause of the Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”


> Secret Grand Juries have been used to prosecute activists for decades now.

That's true only in the sense that:

(1) In the US, all serious offenses in the federal system must either have a grand jury indictment or the defendant waiving their right to indictment in order to proceed, as a matter of Constitutional rights of the accused, and

(2) Secrecy is (as the federal courts have found) an essential element of the character of a criminal grand jury, included within the Constitutional requirement, and

(3) Activists have sometimes been prosecuted for serious federal crimes, without waiving their fifth amendment rights (almost no one waives indictment except as part of a plea bargain), requiring an indictment by a (inherently secret) grand jury as a pre-requisite.

But there's no special link between grand juries and prosecution of activists, specifically. You might as well say “papers filed in courts have been used to prosecute activists, so I refuse to participate in any paper-filing-in-court.”


This demonstrates a profound ignorance of the role of grand juries in the legal system. A grand jury is used to determine of there are sufficient facts for the state to make an indictment and therefore to protect the accused they are _always_ secret. They are not used to prosecute people, they are used as a filter to prevent unwarranted prosecution.

It's as if no one is even reading the link I posted in response to this.

> Today, FBI, police harassment and secret grand juries are being used to attack Muslims and other immigrants, Black, Puerto Rican, Mexican, Native, anti-war, anarchist, environmental and animal rights activists and movements. These incidents are not isolated, and they are not happening because the government wants to "solve crimes." They are an attack on all our movements: an attempt to divide us, isolate outspoken individuals, create fear and distrust among us, and rewrite our history of resistance as "criminal."

The government will use secret grand juries to get activists to testify against other activists, thus splitting up movements and pitting the participants against each other. It undermines basic democratic principles no matter how grand juries were _supposed_ to be used. It's historically been used as a weapon of the state to fight against activists. This goes back to the days of McCarthyism.


I read the link and rejected its pages of persecution-complex thesis and lack of worthwhile supporting evidence.

The grand jury compels activists to testify when they are involved with or witness to crimes and conspiracies. The witnesses are not picked at random or for political purposes, but some political groups that have violent edges will sometimes find themselves facing a society that does not share its appreciation of "direct action". Some of the more radical elements of the groups you mention _are_ criminal and dealing with the via criminal prosecution is much better than the alternatives (which is not to just leave them alone but rather to treat them as terrorists, traitors, unlawful combatants, or simply line them up against a wall and shoot them.)


The US and Liberia are the only countries that use Grand Juries for preliminary hearings.

I'm quite appalled at the juxtaposition in your response. You claim to not support the direct action used by activists, yet your suggestions for "alternatives" to Grand Juries are far more violent and combative than anything the activists are doing -- even going so far as to suggest to line them up against a wall and execute them.

There are plenty more alternatives for a functioning Democracy than Grand Juries.


You said it better than I could.

I mean what's the alternative? The judge says "You have to testify" and the person says "no" and the judge says "ok"?


Likely for ideological reasons as Chelsea Manning was offered immunity for the testimony. The paper mentioned interestingly that Chelsea has served the longest sentence for leaking information.


Offering limited immunity and demanding testimony is standard procedure for grand juries and civil libertarians have been complaining about the way in which this has been abused for years.

The only way out of this sort of thing is making the legal argument the person simply isn't going to testify and the jailing is basically punishment, not coercion (where is considered OK here since it's supposedly not self incrimination). If anyone could considered unwilling to testify, it would be Manning, since she's already served a huge sentence for leaking information.


It was apparently the closed nature of the grand jury. She's happy to testify in public, and claims that all questions that were asked were reiterations of questions that she has answered in other forums, including her court martial.


Grand juries are secret for a number of reasons, not least of which is to protect people who are not indicted. And, also, to protect people who are indicted from reputational harm that may result from Grand jury testimony, which unlike trial testimony, is not subject to cross examination because it is not an adversarial proceeding, but a gatekeeping function ahead of serious criminal charges.

Like any jury, one of the functions of a grand jury is to evaluate the credibility of witnesses, so the fact that questions were asked in other forums does not make it unnecessary or inappropriate for them to be asked of a witness before a grand jury.


All of that is true, but it seems that people think that this is different. I'm not sure though exactly what makes this proceeding more "secret" than a typical grand jury.

The Grand Jury is supposed to see and hear the witness first-hand, in order to evaluate her and her credibility.

That's actually an important due process issue in favor of the accused.


Yeah, but that's complete baloney. I understand Manning wants to keep her beliefs or whatever, but there's no law protecting that kind of behavior.

The 5th Amendment is against SELF-incrimination. The US Government is 100% allowed to force you to spill your secrets about other people.

Furthermore, not all details of a case is made to a jury. Only the details deemed acceptable (ie: impermissible evidence is kept away from the Jury, to help provide a more fair trial). So its not like everything should be public.

------------

Does anyone have a general idea for what is going on exactly? Like what this Wikileaks case is even about? I feel like Manning is a red-herring, irrelevant to the main story. Its like Manning is the "clickbait" portion of the article, but nothing else is elaborated upon.


I don't see the baloney. Believing a law is unjust is not the same thing as believing it doesn't exist.

She never said she expects there to be no repercussions for refusing to testify. She said previously that she was aware that she is likely to go to jail over this, and accepted the consequences.

As far as I'm aware, she never claimed she's exercising her 5th amendment rights. The ones she listed in her refusal to answer the questions were the 1st, 4th and 6th. I don't care to guess at the connection she sees there on any of those fronts, but I also haven't seen it explained, so maybe I'm missing something.


> Believing a law is unjust is not the same thing as believing it doesn't exist.

Yeah, and I'm of the opinion that the law is perfectly acceptable in this case. Its 100% acceptable to jail someone who refuses to testify in a criminal case, especially if they have information about that criminal case.

If you know someone is a murderer and you have evidence for it... it is a CRIME to hide that evidence from the police. Period. That's how our society works.

Yeah, people hate snitches. Snitches get stiches, don't be a snitch, etc. etc. But lets be frank, if it weren't for snitches, then the Police wouldn't have any evidence to work off of at all. So the government is 100% in their power to compel people to snitch on others. Both legally AND morally.

--------------

The greater question is what is going on exactly. There is very little discussion around here about what this "Wikileaks" case is. That's probably the root of the story.


> Its 100% acceptable to jail someone who refuses to testify in a criminal case, especially if they have information about that criminal case.

There is no criminal case. A prosecutor doesn't have to even bring charges to convene a Grand Jury.

It's entirely possible that in 2 years, this entire Grand Jury (which will have kept Manning jailed the whole time) will conclude with "Welp, guess there's no basis for bringing charges against anybody. This whole thing was unfounded. Everyone go home."

And the prosecutor will say "Oh well, at least I got to use the power of the courts to compel testimony from practically any witness about practically anything. We'll just use all that info for our next investigation."


> someone who refuses to testify in a criminal case,

This statement is false.

Manning IS willing to testify though. Publicly.

I am not sure why you are strawmaning here.

I think there very much is a moral stand to make here. Society should not be run on secret courts. If the US government wants to accuse wikileaks of something, then let them do so publicly.

Secret courts are a huge infringement on justice.


> This statement is false.

No, it's not.

> Manning IS willing to testify though. Publicly.

That's meaningless, and probably only being stated because Manning knows (if only because her lawyers must know this) that it is meaningless. Criminal grand jury proceedings are secret, period, and criminal grand jury proceedings and findings are required initial step (absent confession) for serious federal criminal prosecution. Refusing to testify secretly is refusing to testify, period, and the claim that she is challenging the secrecy of the proceedings is meaningless PR fluff.

> Society should not be run on secret courts.

The criminal grand jury process is not a secret court that runs society; it is a secret process that must complete before certain charges are made, which are then prosecuted openly in the same court.

> If the US government wants to accuse wikileaks of something, then let them do so publicly.

The grand jury process is a gatekeeping function for public accusations of certain crimes. The US is trying to make a public accusation, and Manning is unlawfully interfering with the process by which it's desire to do so is assessed.


That's the same as refusing to testify. You don't get to chose the format of your testimony, especially not in a grand jury which are secret to protect the innocent as well as prosecute the guilty.


> Manning IS willing to testify though. Publicly.

And that's utter baloney. Its confusing enough to be on a jury, to be pulled out of work and then forced to work on a case you kind of don't care about... while getting paid basically minimum wage to do it.

Witnesses are gagged so that the overall discussion that happens in court will take place in an orderly manner. The prosecutor and the defendant will both have opportunities to ask questions and make their case to the jury.

But under no circumstances is a witness allowed to inject their personal politics into a case. As such, they are gagged with respect to the information they tell.

If the Prosecutor isn't willing to bring forward some pieces of data... and the defendant also doesn't want to bring it up in cross-examination, then there's really nothing else for the Witness to say.

> I think there very much is a moral stand to make here. Society should not be run on secret courts. If the US government wants to accuse wikileaks of something, then let them do so publicly.

The Trial will be public. But the discussion BEFORE the trial is secret. The prosecutors need to get their story straight before they make a public discussion.

This is basic court stuff. The defendant gets an opportunity to see all the evidence before the trial. Both sides are sworn to secrecy to help the process move forward. Its a complete clusterFFFF if you get witnesses and whatever throwing pre-trial evidence to the media.

-------------

This is an order to testify before a Grand Jury. Technically speaking: this means that the prosecutors haven't even proven that there's enough evidence to officially give a charge yet.

The Grand Jury is called to provide the answer to the question: is there enough circumstantial evidence to begin an official trial? To leak information this early in the game would just be nasty, to both the prosecutors and the defendants.


Can you please stop sprinkling flamebait like "utter baloney" into your posts to HN? Especially on divisive topics, where we're trying to delay the inevitable slide into lamewar.

From the guidelines: "Comments should get more civil and substantive, not less, as a topic gets more divisive."

https://news.ycombinator.com/newsguidelines.html


> This is basic court stuff

No, it is not "standard procedure" for a country to have secret accusations against someone, for almost a decade, and to lie about it, and pretend like they don't, for all this time.

This has been what has happened all along. The whole reason Assange is in the Embassy is because he says the US has secret accusations against him and extradition orders. The government said otherwise. Anti WikiLeaks people said otherwise. They said it was a crazy conspiracy theory.

These people were wrong. These people were lying. And everyone got tricked, and those of us who did actually believe that the US had secret accusations against Assange, were right. We were proven correct, and it took almost a decade for this to come to light.

And now, of all times, when the people who lied, pretended, or got tricked into not believing that the US had secret accusations against Assange just got 100% proven wrong, well now the narrative is "oh, it is perfectly normal to have secret accusations against someone for a decade! Nothing to see here!"

No it not normal. The government makes public accusations against people all the time. They have arrest warrants, they have most wanted lists, they give their opinion on the law and who broke them all the time.

This is normal, and it is a healthy part of the justice system to make their accusations public.


> No, it is not "standard procedure" for a country to have secret accusations against someone, for almost a decade, and to lie about it, and pretend like they don't, for all this time.

To the extent that there are secret charges (a sealed indictment) against WikiLeaks, it's irrelevant to this case, because when you already have an indictment you don't need grand jury testimony.

You only need grand jury testimony for a new indictment. And, in any case, secret grand jury proceedings are not only routine but mandatory, and keeping indictments sealed when the target is out of reach of US law enforcement, and/or while related investigations are proceeding, is also routine.

> The whole reason Assange is in the Embassy is because he says the US has secret accusations against him and extradition orders. The government said otherwise.

No, it didn't. Well, it denied that it had requested extradition, which is not a secret process, and the British government denied it has received such a request. The US government has neither denied or confirmed the existence of an indictment charging Assange.


[flagged]


Can you please stop posting in the flamewar style to HN? The goal here is good conversation, not smiting enemies.

If someone is wrong, explain how respectfully, omitting swipes.

https://news.ycombinator.com/newsguidelines.html


> So you agree with me that there have been secret accusations and secrets courts handling this case for almost a decade now,

No. I don't agree that regular criminal courts become secret courts simply because, as a matter of the 5th Amendment rights of the accused, a grand jury indictment, which is the result of a secret process, must be returned prior to filing certain charges.

Nor do I agree that such process has occurred on any particular timeline, though I'd be surprised if law enforcement didn't investigate Assange and WikiLeaks thoroughly in that time; I have no idea when they first empaneled a grand jury related to WikiLeaks and whether any indictments have been issued under seal.

I strongly suspect that Assange has, at some point, been indicted under seal, but I don't think that process took any significant fraction of a decade, unless they're have been multiple superseding indictments, all sealed, and in any case that's just a strong suspicion that it has even occurred at all.

> that everyone who brought this up was right and that everyone who called this a conspiracy theory was a completely and utterly wrong?

No one called the idea that he might have a sealed indictment, alone, a conspiracy theory.

The conspiracy theory was that the Swedish rape charges were a result of US pressure on Sweden, that a secret extradition conspiracy existed with Sweden, and they extradition to Sweden was a front for him to be extradited to the US.

If the US wanted him extradited, a regular open extradition request to the UK would be simpler and more effective; there's no plausible reason for the Swedish roundabout theory.

> It is not about this one trial here.

That's true because this is not a trial. It's a grand jury investigation, the thing that happens before there are charges, and before there can be a trial.


> No it not normal. The government makes public accusations against people all the time. They have arrest warrants, they have most wanted lists, they give their opinion on the law and who broke them all the time.

AFTER a Grand Jury proceeding. Yeah, they're allowed to be public with the accusation only AFTER a jury has convened and said "there's enough evidence to publicly make the accusation".

Come on dude. You clearly care about protecting the defendant, which means any witness to a grand jury proceeding MUST be kept secret.


> You clearly care about protecting the defendant, which means any witness to a grand jury proceeding MUST be kept secret

Umm, no. If there have been secret accusations and secret courts and secret trials against someone for almost a decade, the very best way to protect that defendant is to make the information public.

This is especially true if the defendant is the one demanding it all be made public.


>Umm, no. If there have been secret accusations and secret courts and secret trials against someone for almost a decade

No. There have been 0 secret "courts", unless you're intentionally trying to stretch the term "court" to mean something it doesn't. There have been standard grand jury proceedings. Technically speaking, there have also been 0 "secret" accusations, because an official accusation is an indictment, which is public, and made after the grand jury.

Standard grant jury proceedings are done in secret, yes. That an accusation is made in secret is fine. If the government "secretly accuses" me of some crime, and then there's a grand jury that convenes, and they find that nothing happened, then that's the end of the discussion.

If the grand jury agrees, then, and only then, is the government able to make a public accusation and do important things like go to trial.

What you're asking for is the ability for the government to publicly defame anyone based on no evidence. "Secret" grand juries prevent that.


> This is especially true if the defendant is the one demanding it all be made public.

The defendant isn't present yet. This is a Grand Jury proceeding. If anything, the main problem with Grand Jury proceedings is that they don't happen enough.

Its absolutely essential that those involved in Grand Jury proceedings be kept secret, to protect the defendant to-be.


> Its absolutely essential that those involved in Grand Jury proceedings be kept secret, to protect the defendant to-be

This does not protect a defendant who has had secret accusations against him for almost a decade.

The defendant himself has demanded, for years and years, that the accusations be made public.

There is absolutely no way you can spin this to be "protecting the defendant" when the defendant himself has been wanting the accusations be made public for years.

They do not want the secret accusations and secret crimes. They want the accusations of crimes to be made public, so they can defend themselves.

It is impossible to defend yourself against secret crimes. The best way to defend yourself against politically motivated prosecution is to bring things public and win via politics.

Politically motivated attacks require a political solution. By making everything public, which is what the defendant wants!

> The defendant isn't present yet.

We live in a digital age. Bring it into the daylight, and let the world judge, in the realm of politics.

I am not talking and defending yourself in the court, when you've already been arrested, and are therefore screwed. I am talking about defending yourself in the real world, IE, via politics.

The world politics stage is the only stage that matters, when it comes to fights between nation states.


> This does not protect a defendant who has had secret accusations against him for almost a decade.

Grand jury secrecy protects the legal rights and reputation of both the accused and third parties. It does not protect the preference of the accused to be able to decide whether or not to subject themselves to the jurisdiction of the United States based on the scope and nature of charges they may face, which is not a legal right.

Of course, that there is an indictment, or that they it has been around for a decade, is speculation (if supported by some, though not unambiguous evidence.)

> The defendant himself has demanded, for years and years, that the accusations be made public.

The allegedly indicted party (who is not a defendant until and unless prosecuted) has no legal or moral right to do so, until and unless the government chooses to prosecute the indictments which may or may not have been issued. (He could also ask to surrender and waive his fifth amendment right to indictment in the case currently before the grand jury, assuming he is the target, which would end secrecy and free Manning from any need to testify.)

> They do not want the secret accusations and secret crimes. They want the accusations of crimes to be made public, so they can defend themselves.

Until and unless charges are filed based on the indictment, which is merely permission for the government to file charges, there is no criminal accusation by the government to defend against. Once there is such an accusation, it will be public.

> It is impossible to defend yourself against secret crimes.

Most crimes are intended to be secret, and people defend against them all the time. It's impossible to defend yourself against secret accusations, but that's only relevant if something can happen based on the secret accusations. He only thing that can happen based on sealed grand jury indictments is...public criminal charges. Which aren't secret, and which you can defend yourself against the same as any other criminal defendant.

> The best way to defend yourself against politically motivated prosecution is to bring things public and win via politics.

Your basis for characterizing not only the existence but also the motivation of the supposed “prosecution” this way is...what?

And, in any case, if your argument is that the interest in getting the indictment unsealed is so that the indicted party can use it to further bolster his bid for foreign-government political support to assist in avoiding being subject to legal process...well, not assisting flight from prosecution is one of the key reasons indictments are often ordered sealed until the accused is in custody.


> to decide whether or not to subject themselves to the jurisdiction of the United States based on the scope and nature of charges they may face, which is not a legal right.

Nobody said it was a legal right. Whether something is a "legal right" or not is pretty irrelevant when you are defending against a nation state political attack. The nation state can probably just do whatever it wants anyway.

> The allegedly indicted party (who is not a defendant until and unless prosecuted) has no legal or moral right to do so

The best way to defend yourself against nation state attacks is rarely "Put yourself in a cage, controlled by said nation state.".

> Once there is such an accusation, it will be public.

Not if they do the same thing that they done with the other accusations, which is to seal the indictment. Secret courts, secret judges, secret crimes. There is zero way to hold the government accountable for this kind of stuff, unless you count "Just put yourself in the cage, controlled by said nation state" as some sort of solution that achieves justice.

> well, not assisting flight from prosecution is one of the key reasons indictments are often ordered sealed until the accused is in custody.

And it is a key reason to support making it public, if you believe that the process is corrupt to begin with. There isn't any way to hold the government accountable otherwise.

Would you support Sadia Arabia if they started extraditing gay US citizens, from the United Kingdom, and then executing them for being gay?

I wouldn't. The situation with Assange isn't much different then supporting Sadia Arabia if they engaged in that kind of behavior.

IE, I am sure that exposing government crimes is "illegal" in many countries that don't want to be exposed. That doesn't make it right. And the moral thing to do in that situation, is to undermined any and all efforts to prosecute whistleblowers, and undermine them through whatever means necessary, regardless of what the legal opinion of the nation state is on the matter.


> Not if they do the same thing that they done with the other accusations, which is to seal the indictment.

No, what is alleged now is that there is a sealed indictment (which is fairly routine before an accused party is in custody.) To actually prosecute based on such an indictment, it will be unsealed.

> Secret courts, secret judges, secret crimes.

There are no secret criminal courts and no secret judges in the US. There are secret proceedings, including all grand jury proceedings, but I have yet to hear an argument for why that is a bad thing rather than an important protection of all of the rights of the (potentially) accused, the rights of third parties on whom grand jury evidence may touch, and the interests of integrity of law enforcement process. And simply yelling “secret court” repeatedly is, as well as being factually inaccurate, not an argument.

There are, naturally, secret crimes, but that's because criminals often (but not always!) prefer to do their crimes that way.

> Would you support Sadia Arabia if they started extraditing gay US citizens, from the United Kingdom, and then executing them for being gay

I wouldn't support any country for prosecuting people for being gay, what the punishment, process, or whether they attempted to use extradition is irrelevant. But since there's no even remotely plausible reason to suspect that any US offenses for which Assange may have been indicted, or which a federal grand jury might now be in the process of considering indicting him, are for anything remotely like sexual orientation, that's hardly relevant.


She claims protection from the "First, Fourth, and Sixth Amendment, and other statutory rights", not the fifth amendment.

I assume first because she would be under some sort of gag order about the proceedings.

Fourth I'm not getting; unreasonable search and seizure?

Sixth is probably the public part of "public and speedy" trial, but seems slightly dubious, since she is not on trial, and apparently has an immunity deal in place, and my understanding is that transactional immunity breaks the shield of the fifth amendment, so it seems that it would apply here as well.


"She claims protection from the "First, Fourth, and Sixth Amendment, and other statutory rights", not the fifth amendment. I assume first because she would be under some sort of gag order about the proceedings."

IANAL, but from what I understand, grand jury witnesses are not bound to secrecy (though everyone else in a grand jury is). So I'm not sure where the First Amendment challenge would come from.


The First Amendment claim seems awfully difficult. Actually, all three do; I have no idea what the Fourth is doing there.

There are a few possibilities other than the gag order; in particular, it could be a reference to a privacy/free-association claim that answering this subpoena would be injurious to people other than Manning or Wikileaks. NAACP v. Alabama accepted that, but this would be an enormous stretch from those circumstances. Connecting it to the closed nature of the hearing would be even harder, but you might get there by arguing that it could close information which wouldn't be revealed by later actions taking place in secret courts. It could also be an argument in the alternative, ignoring the private/public aspect.

As for the gag order, that might stick if it's not simply binding Manning to secrecy as a grand jury witness? If she's received a National Security Letter or something of the sort, there might be an argument that she's being compelled to speak in private in a way that collides with other restrictions the government has placed on her.


Not in general bound to secrecy, but apparently this is some sort of "secret" grand jury that's secret in a way that grand juries are not usually secret. I can't seem to find any details on this point though, so it might just be overblowing the default "secrecy" that goes into normal grand jury proceedings.

One interesting theory I've seen: Manning's appeal to the First Amendment might imply she's under an NSL or other gag order?

I can sort of picture an argument where Manning has been barred from speaking publicly on some topic, and so being compelled to give secret testimony would turn a legal gag order into an illegal one. 100% speculation, but it would at least fit a few of those pieces together.


> One interesting theory I've seen: Manning's appeal to the First Amendment might imply she's under an NSL or other gag order?

It's a bizarre claim that this would even be relevant, but the whole claim of both constitutional and statutory privilege against immunized testimony before a federal grand jury (on matters where her own conduct would probably already be largely protected by double jeopardy, even without immunization) is pretty facially bizarre, so maybe. It's impossible to tell the basis of the claim without the (sealed) motion filed to quash the subpoena.

> I can sort of picture an argument where Manning has been barred from speaking publicly on some topic, and so being compelled to give secret testimony would turn a legal gag order into an illegal one.

I can't see a case where that would be the case (public gag orders for things that one still must discuss in closed proceedings aren't all that uncommon), but that doesn't stop her from arguing it even if it is wrong.


Yeah, I didn't mean to imply I think any of this will hold, or necessarily should hold.

Manning's justifications don't make much sense, and I'm guessing tossing out three amendments was just done to ensure anything that might be useful at the contempt hearing was included. (I don't actually know this for sure, but I assume you can't fight a contempt charge with an argument you didn't use initially, just like you can't appeal on a defense you didn't start with. If I invoke the 3rd in court and get shot down, surely I can't then fight my contempt charge with a rationale under the 5th?)

At this point, the only thing that seems like an open question is whether the bizarre arguments stem from not having a legal rationale for the refusal, or being in a bizarre legal situation. We've seen enough circular arguments like "you don't have standing to sue for this information, because you can't prove you're affected, because you can't see the information" that I'm not ruling anything out. That said, my first guess is that Manning's team knows none of these arguments will stick, but wants to contest the charge and provoke a debate. One, four, and six certainly look like the amendments I'd pick if I wanted to use the contempt hearing to talk about government overreach.


> Not in general bound to secrecy, but apparently this is some sort of "secret" grand jury that's secret in a way that grand juries are not usually secret.

I don't see any indication that that's the case; the media habitually applies “secret” as a modifier to “grand jury” when no more than routine grand jury secrecy applies because it bumps up the perceived intensity of a story.


Her statement (from twitter [1]) reads in part

> Yesterday, I appeared before a secret grand jury after being given immunity for my testimony.

So it's not strictly the media, Manning has used the language herself. In another tweet [2] she says

> I will not comply with this, or any other grand jury ... I will not participate in a secret process that I morally object to, particularly one that has been historically used to entrap and persecute activists for protected political speech.

The secrecy might not be the central pivot given this statement -- rather perhaps her objection is to the prosecution against Wikileaks that the grand jury is considering.

[1] https://twitter.com/xychelsea/status/1103713700391907329

[2] https://twitter.com/xychelsea/status/1104094170950578177


Yes, but in Manning's case it's clearly political, to call attention to routine grand jury secrecy and why she intends to defy any grand jury.

I believe that, if you have immunity, then you can be forced to testify - because you already cannot incriminate yourself. It's a weird legal loophole.


I didn't believe you so I hit google. Several links later, including https://law.justia.com/constitution/us/amendment-05/08-power..., I am now convinced that you're right.

Thanks! I learned something today!

I also learned that immunity, when properly granted, protects you from both federal and state law. That has to be abusable...


This is true; it's become pretty standard practice to offer immunity, then compel testimony with Fifth Amendment protections waived.

Presumably that's what motivated Manning's focus on the private hearing and invocation of the Sixth amendment. Manning isn't the one being charged at the hearing, but compelling private testimony under threat of incarceration looks rather like a de facto private trial.


That's correct.

The Framers said "No person ... shall be compelled in any criminal case to be a witness against himself."

They could just as easily have said "No person shall be compelled in any criminal case to be a witness." But they did not.


> The 5th Amendment is against SELF-incrimination.

She hasn't claimed the fifth, she claimed that she is protected by the first, fourth, and sixth amendments, and other statutory rights. (On the surface, these claims are as implausible as a fifth amendment claim would be, but they are different and, in any case, if her attorneys have filed a brief making a legal case for it I haven't seen it and can't evaluate it.)


> On the surface, these claims are as implausible as a fifth amendment claim would be

This was also my reaction, and I'm pretty curious if/how they'll be used. I presume the reason for citing all three Amendments was just to preserve options for a subsequent defense; you can't invent a new basis for your refusal at the contempt hearing.

I see maybe two paths for the First Amendment invocation.

It could be a right to privacy argument via freedom of assembly, since NAACP v. Alabama overturned contempt for failure to provide information about members of ideological organizations. That seems coherent, but not at all likely to work; Alabama was bringing suit against the NAACP and the court held that reveal of member roles would produce clear harm to the members. Or it could be a compelled speech argument, but that would be kind of dumb since it could cover any testimony at all. Testimony isn't an expression of belief, so the closest precedent is probably compelling companies to make "purely factual" statements, which is legal. (A press-shield argument would fit nicely, except that we don't actually have that right.)

For the Fourth, I have basically nothing. Maybe some argument that demanding factual speech about a person's actions is comparable to a digital search like a wiretap? But there's a subpoena here, and subpoenas to gather current 'records' about past events work fine, so I really have no clue.

The Sixth is fascinating, and I'm guessing it hinges on the Manning's opposition to a closed hearing. It's incredibly hard to close even hearings where judgement won't be issued, rather than merely closing specific segments, and giving someone a choice between private testimony and prison looks sort of like a de facto private trial. I'm pretty sympathetic, but I can't imagine it will stick; grand jury hearings are regularly private, and if that's not enough classified information rationales usually work.

Does anyone else have a better guess at why they picked those three amendments?


> The Sixth is fascinating, and I'm guessing it hinges on the Manning's opposition to a closed hearing. It's incredibly hard to close even hearings where judgement won't be issued, rather than merely closing specific segments, and giving someone a choice between private testimony and prison looks sort of like a de facto private trial.

It's not a trial, it's grand jury proceedings, which are invariably closed. Any resulting trial is a separate process.


The "private trial" being referred to is of Manning herself, not whoever is being investigated by the grand jury, since Manning is being sent to prison (for contempt) by a non-public court.

>what is going on exactly? Like what this Wikileaks case is even about?

There's a grand jury looking at indicting Julian Assange. Likely for stuff he did leading up to the release of the 2010 war logs (according to David House, who already testified to the GJ). I'd put money on it being specifically related to NTLM hash cracking or other help Assange gave to Manning in order to get the documents.


Do you have a source that explicitly says this?

That was also my inference from this article but it was never outright said. Likely due to the bias of the nytimes.


> A brief notice from Manning's representatives said that a statement was forthcoming. Manning reportedly told journalists outside the courthouse on Friday that she was ready to go to jail and would only testify in a public setting.

> “These secret proceedings tend to favor the government,” she told reporters, according to the Post. “I’m always willing to explain things publicly.”


For being unwilling to testify against a journalist it's worth pointing out.


For being unwilling to testify non-publicly. She's entirely willing to testify publicly. It's a strange hill to make a stand on, but I suppose that's her call to make.


Why do you think that's a strange hill?

This is someone who thinks the system is trying to protect itself, and they would like to expose that at all costs.

to use 2019 parlance, it seems really "on-brand".


It's because there's no such thing as a public grand jury. that's not how the system works.

This is all very cut and dried. whoever her lawyer is is doing her a huge disservice. She has immunity and a subpoena. That means she's going to testify whether she likes it or not.


Unless her intent is to not testify. In that case, her demand that the proceesings be open would just be a bluff that she can make because she knows it won't happen. She still gets held in contempt for not testifying, but can claim some moral highground by shifting fault to the court.

And she very well may never testify. She need only wait out the grand jury; and since she had expirience in prisin before making this choice, it seems entirely possible that she will out wait them.


Except that they can't actually force her to testify.


Sure. The alternative is to spend the rest of your life in jail.

True but they can then send him to jail.

This is the only "him" on the page and her new name is the only reference, so you can't argue ignorance...

This is just blatant bigotry and has no place in Hacker News.


You can argue an innocent slip of the tongue. It's not like the commenter knows her personally.

Calling it out as "blatant bigotry" feels far more intolerant. People aren't either total saints or total bigots.


I would argue that calling out "blatant bigotry" is addressing behavior. It doesn't automatically make the person a total bigot to blatantly demonstrate bigotry.

I agree with your statement, but I disagree that there was a clear demonstration of bigotry.

A slip of the tongue does not equate to intolerance IMO. Not everyone adjusts as quickly and easily as one might desire or expect.


Sure, but I wasn't saying it was. I was just saying that describing behavior as "bigotry" is different from calling the person a bigot.

I agree that a single misgendering is far from enough to label someone a bigot, and isn't enough to even conclusively be described as bigotry.


Because, as a rule, you're not prohibited from publicly talking about your grand jury testimony.


Unfortunately, that journalist is being investigated for crimes so that is somewhat inevitable. This also, is the opposite of a journalist going to jail to protect a source, Manning is the source and everyone already knows that.


My understanding is that it's unclear exactly what crimes the journalist is being investigated for. There are supposedly some First Amendment issues at play here, and it's reasonable to wonder why the prosecutors have worked so hard at avoiding any exposure to the best disinfectant.

Which, it's worth pointing out, Manning has also said that she's willing to testify, but only by light of day, not behind closed doors.


> My understanding is that it's unclear exactly what crimes the journalist is being investigated for.

That's supposed to be secret in grand jury proceedings; the only thing that is supposed to become clear is what (if any) charges they are indicted for as a result.

> it's reasonable to wonder why the prosecutors have worked so hard at avoiding any exposure to the best disinfectant.

Because they are required (both by the law around grand jury process and long-standing administrative policy to protect all of the reputations of people who aren't charged, the fairness of process for those who are charged, and the integrity of law enforcement and any other related investigations that might overlap with the present one but be in different statuses) to not make public most information pertaining to an investigation where an indictment has not been returned yet, and also specifically to preserve the secrecy of the proceedings before the grand jury.

> Which, it's worth pointing out, Manning has also said that she's willing to testify, but only by light of day, not behind closed doors.

Which is simple PR; federal grand juries considering criminal indictments cannot operate other than secretly.


> Because they are required (both by the law around grand jury process and long-standing administrative policy to protect all of the reputations of people who aren't charged...

Incidentally, this exact policy was why tables were flipped over The Comey Letter/press conference. When the FBI decides not to go forward with charges, they aren't supposed to say jack shit.


Given the extremely sensitive nature of this investigation—not only the political implications, but also the fact that it involves a state known to conduct assassinations on foreign soil—a closed-door hearing is entirely reasonable.


> Given the extremely sensitive nature of this investigation—not only the political implications, but also the fact that it involves a state known to conduct assassinations on foreign soil—a closed-door hearing is entirely reasonable

That's not why it's secret: it's not a case-by-case, sensitivity-based decision. Criminal grand jury proceedings are secret, period. This protects suspects, it protects witnesses, it protects the integrity of law enforcement investigations, it protects third parties who might be mentioned in evidence and testimony. This is a long-standing rule that applies to all criminal grand jury proceedings.


Are there any federal criminal trials in the US where one of the parties is not a state known to conduct assassinations on foreign soil?


Yeah, definitely. But questioning the closed-door hearing is also reasonable. This is really a case of dueling ideologies. I have a hard time seeing either party as being unreasonable, they just have differing values.


Why cant the public know about who we are paying taxes to assassinate?


Journalists don't wait to release a dump of emails to hurt a political candidate, in concert with the opposing candidate.


Why not?


Why is a free press that deliberately meddles with the US electoral process a bad thing?


What sort of reporting on the candidates would not constitute meddling?

In business, do you not think there is a difference between deliberately sabotaging your competition vs. producing a better product than your competition?

Because bias. It's not a free press when that press is a corporation with a political agenda.


Can you point to a free press at any time in our history that wasn't a corporation with a political agenda?

Reuter’s or any number of small newspapers that were independently owned from major corporations, and stayed neutral.

> It's not a free press when that press is a corporation with a political agenda.

If it's a corporation with a political agenda, sure, that's an issue (though not of an absence of free press, just an inability to serve the purpose of having a free press); when it's a multitude of corporations with a diversity of political and financial agendas, less so.

OTOH, "freedom of the press" is not "immunity of people who publish information from all law", either.


Wikileaks has about as much claim to that title as The National Inquirer does, at this point.


pretty straightforward, given immunity for testimony and still refuses to testify. If this were Mueller prosecuting, everyone would be cheering.


Is a custodial sentence mandatory for contempt of court? Seems like the prosecutors didn't want it.


This isn't a sentence. This isn't a crime being punished. It's civil contempt. It's designed to coerce the person in custody into complying with the court order. It's often said that in such circumstances that the person being detained "holds the keys to their own jail cell."


That doesn't mean that the coercion couldn't be: pay a fine for each day you fail to comply, as is commonly used to coerce corporate persons.

Putting someone in a cell for something when they're not a danger or flight risk is barbarism.


The most common reason for holding someone in contempt is for refusing to follow an order to pay money. Ordering them to pay more money isn't going to be effective. There really isn't anything else you can do. You can take their stuff, but if they had assets that could easily be seized, you would do that in the first place.

Corporations can be fined into compliance because making money is generally a corporation's only purpose. The closest equivalent for and individual is removing time from their life--jail time.

A jail cell is basically the last resort to force compliance. It's also what will eventually happen to individuals running a corporation if they keep defying court orders.


That's true, but in this case it's not being used as a last resort, but seemingly as a matter of course.

Except that at the end of the civil contempt confinement the prosecutors often file criminal contempt charges.


Civil contempt can be generally viewed as (not) doing something for the benefit of the complainant. In criminal contempt it's for the benefit (or protection of the sanctity) of the court itself.

The only statement from the prosecutor that is vaguely in that direction seems to be that they preferred compliance to incarceration, not that they didn't want incarceration so long as the non-compliance continues: “The government does not want to confine Ms. Manning,” said Tracy McCormick. “She could change her mind right now and decide to testify.”


"Stop hitting yourself," in other words.


In this case there is no sentence. The judge is holding her in contempt to compel her to testify, not as a punishment. And the prosecutors most definitely want it:

“The government does not want to confine Ms. Manning,” said Tracy McCormick. “She could change her mind right now and decide to testify.”

It's not that they didn't ask the judge to do this.


I first read about this on Boing Boing[1], which said Manning believes that "since testimony before grand juries is secret, grand juries can create fear by suggesting that some members of a political community may be secretly cooperating with the government. In this way, grand juries can seed suspicion and fear in activist communities."

I'm not sure how not being in a grand jury absolves activists from suspicions of secretly cooperating with the government, because one doesn't need to be in a grand jury to secretly cooperate with the government. In fact, if secrecy in cooperation was paramount, then participating in a grand jury would seem to be counterproductive to maintaining such secrecy.

Later, the article states:

"By serving Chelsea Manning with a grand jury subpoena, the government is attempting once again to punish an outspoken whistleblower for her historic disclosures. We stand with Chelsea in support of her refusal to participate in this repressive and undemocratic process.

"Grand juries are notoriously mired in secrecy, and have historically been used to silence and retaliate against political activists. The indiscriminate nature of grand juries means the government can attempt to artificially coerce a witness into perjury or contempt. Chelsea gave voluminous testimony during her court martial. She has stood by the truth of her prior statements, and there is no legitimate purpose to having her rehash them before a hostile grand jury."

If Manning is willing to testify truthfully and publicly on the subject, then I'm not sure how participating in a grand jury would expose her to either perjury or contempt. It's only if she lied or refused to testify that she could be charged with perjury or contempt, right? But she's not refusing to testify altogether and is not saying she's going to lie, so where does the purjury and contempt worry come from?

Finally, why does the statement refer to a "hostile grand jury"? How is a grand jury hostile?

[1] - https://boingboing.net/2019/03/03/chelsea-resists.html


The DC of Alexandria seems to be to security issues what the eastern DC of Texas is to patent trolls. Both specialized in stretching the law to its limits.

I understand that she feels thankful to Julian Assange, and doesn't want to harm him, but I don't see why she should be allowed to choose not to testify.

"Because I testified in a different trial years ago" isn't terribly convincing.


Especially coming immediately after Manafort got off easy, this is an absolute travesty.


It's worth noting that murderers have gotten less time. If you recall, prosecutors threatened Aaron Schwartz with massive jail time that totally didn't fit the crime.

Not an "intelligence officer", an E-4 specialist. Terrible journalism.

Url changed from https://www.nytimes.com/2019/03/08/us/politics/chelsea-manni..., since the thread that had that URL attracted more comments even though it was posted later.


[flagged]


Manning is also someone that has information about a criminal proceeding and is refusing to cooperate. That Manning was previously convicted and served (significantly commuted) time for committing espionage is irrelevant to the charges of contempt of court.

With wikileaks coordination with Trump and Co.... I gotta wonder if folks who gave wikileaks info earlier on regret who they gave the information to.

Leaking to some group on the internet, you really don't know their motives / affiliation or if it might change.


Was there "coordination" aside from Democrats being angry that a lot of leaks over the best decade paint Hillary Clinton in a bad light? The left seemed pretty willing to hate on Clinton as the archetypal imperialistic neoliberal archvillain, until she became the nominee against Trump.

I'm reminded of this video from Rap the News that I recall seeing as typical of how the leftist internet thought of Hillary Clinton during the Obama era: https://www.youtube.com/watch?v=hl4NlA97GeQ

When it was Bush's State Department being exposed committing war crimes, was Wikileaks coordinating with Gore and co?


I feel like you're having a conversation with me... that you started elsewhere.

I don't understand what your statements have to do with my question.


He appears to be asking a question about your statement.

Kind of asking a question, about how other people felt about some other news. That's not what I was talking about, at all. I don't care / wasn't talking about "Democrats being angry" or anything. Maybe he can answer that, but I don't care.

Nope, you're the one who started it elsewhere, since you casually mention cooperation between Trump team and Wikileaks as if it is a proven fact.

Or, in other words, Fake News(tm).


Trump's own lawyer has made it clear that was ongoing.

I don't know what you mean by "you started it".


It should but cognitive dissonance is strong.


Nah, just a lot of people clearly don't care about the law, and care more about making sure "their side" gets an advantage.

Tribalism instead of law and order. But that's standard politics for you...


Wikileak's "affiliation" is perceived to be the opposite of whoever the last group they exposed was. You could easily "change it," just send something exposing someone else. Clearly, this is not how affiliation works; suggesting that they might not have much of an affiliation in the first place.


For the record I said coordination. My comment about affiliation was purely a comment on the fact that you just don't know what the future might hold.

How is this not double-jeopardy? Manning already served her term for a Wikileaks-related matter.


This has nothing to do with double jeopardy. Being convicted of a crime does not grant you immunity from prosecution for future charges of a similar nature.

(And in any case, refusing to testify in front of a grand jury is not a remotely similar charge to espionage; the fact that they're both "Wikileaks-related" is irrelevant.)


Double jeopardy doesn't cover "related matters," it covers charges for the same conduct. In this case, the conduct charged is refusing to testify. Also, this is civil contempt not criminal contempt so it's not really a charge at all, it doesn't leave a criminal record.


Immunity was already granted for the testimony, this is not a trial for Chelsea in any way.


That is kind of the point. She is not answering questions in protest of the grand jury system.


Because this isn't for those, this is for contempt of court.




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