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Chelsea Manning Can Remain in Jail for Another Year, Judge Rules (gizmodo.com)
63 points by danso 18 days ago | hide | past | web | favorite | 91 comments

Why doesn't she just testify with the tried and true method of "I don't remember / I don't recall"?

> In February 2019, Manning received a subpoena to testify in a US government case against WikiLeaks and Julian Assange (the existence of which had been accidentally revealed in November 2018), which was proceeding under prosecutors in Virginia.[220] Manning condemned the secrecy of the hearings and announced she would avoid testifying,[221] saying "we've seen this power abused countless times to target political speech. I have nothing to contribute to this case and I resent being forced to endanger myself by participating in this predatory practice."[222] Manning also said she had provided all the information she had in 2013 during her court martial and that she stood by her previous answers.[223]


Apparently taking a stand is more important to her than her short term freedom.

It's much easier to get away with that if you are old enough to be assumed to be senile.

How does this not fall under your 5th amendment right to not be forced to testify against yourself?

AFAIK, she hasn't invoked the fifth, nor asked for[1] immunity as part of a plea deal. It's just not relevant.

The principle here is that we have a legal duty to testify truthfully in response to a subpoena, and failing to do so is a crime that can be punished. There are specific carve outs, like the fifth amendment, or the various legally defined privileged communication areas (e.g. legal/medical details). But in order to avoid jail time you need to make one of these arguments before the court and win.

[1] Edit: I looked it up, and in fact Manning has already been granted immunity for this case. So the fifth is right out the window, there is no crime in which she can implicate herself by testifying.

* it's to testify against assange/wikileaks, not herself

* she was offered immunity

> How does this not fall under your 5th amendment right to not be forced to testify against yourself?

She's not testifying against herself. She's testifying against Assange.

Manning has already been tried, found guilty, and then pardoned for her crimes. She's basically immune to anything she testifies. But investigators need the evidence as they're building a case against Assange.

Manning’s sentence was commuted, not pardoned.

So interesting, I didn't know you could be forced to testify against someone else.

There are restrictions on how that amendment may be used, and ignoring a subpoena to testify against _someone else_ is not a valid use.

Besides, she hasn't pled the fifth (because she can't as it makes no sense.)

The answer to this is pretty complex and the article explains it

How is admittedly imprisoning someone for "coercive" reasons not cruel?

/I'll table the unusual bit.

Courts need to be able to compel behavior and threatening punishment for not complying is an important way to do that. The only part I can see as being cruel is the actual imprisonment. One can probably make a good argument that American prisons are cruel in general, but I don’t think that will get too far in court.

I dispute your assumption that the courts need to be able to compel behaviour. At best they need to be able to compel inaction, but they should never be able to compel action

How is “compelling inaction” anything but a synonym for “prison”?

I’m no expert here and have not thought about this extensively, so I have no strong opinion here. That said, at first glance:

* It seems reasonable that courts need some power to compel people to cooperate with investigations — otherwise they’d be unable to act on certain kinds of crimes, conspiracies, etc.

* What alternate justice system would you suggest specifically, which is presumably more fair and effective that this one?

I'm not sure how compelling someone to testify is at all productive. If someone isn't willing to voluntarily testify, then what makes you think their testimony will be reliable and true? If I were sitting on a jury, I would take the testimony of someone unwilling to testify with a large grain of salt.

As for acting on certain kinds of crimes, the job of prosecutors is to gather evidence, and find people willing to testify, to support their case. They already do this, sometimes offering things in exchange for testimony (such as immunity for their part in the crime), to get witnesses to cooperate and offer testimony that can be believed. If they can't get someone to voluntarily testify, however, it seems counterproductive to me to toss them in jail to punish them for not cooperating; from the outside, that to me makes it look like their case isn't very good to begin with.

Note that lying under oath is also a crime, so also not a good plan.

Maybe not, but people absolutely do it all the time. Convictions for perjury are rare, probably because it's way too much work to prove to a jury beyond a reasonable doubt that the witness absolutely knew they were lying when they made a statement that isn't corroborated by other evidence or witnesses.

If you won't follow our rules, I'll make another rule that says you have to!

How do you envision that playing out? If the court has no power to compel testimony they have very little power in general.

How do you figure? They have the power to allow prosecutors to present physical evidence, and to allow testimony from cooperative witnesses. Then they have the power to have a trial based on this evidence, and then find a suspect guilty or not guilty. If they find the suspect guilty, they have the power to impose a sentence.

What more do they need? Compelling testimony from an uncooperative witness isn't necessary for a case, nor is it even very helpful: such a witness can't be considered reliable or trustworthy.

And what if you can't obtain that evidence because the person in possession won't hand it over? What if your only 'witness' is a corporate entity? What if your witness just doesn't like cops? Probably a hundred more scenarios I can't come up with at the moment.

In your world guilty parties walk because the state has no power to make anyone do anything. Everything is based upon the prosecutor being Sherlock Holmes and always finding exactly what they need. The real world doesn't work that way.

I have a really hard time believing that the vast majority of convictions depend on uncooperative witness testimony.

Who ever said "vast majority"?

"Everything is based upon the prosecutor being Sherlock Holmes and always finding exactly what they need."

Are the italicized qualifiers intended to mean something other than that?

I’m on trial for murder. I don’t like my chances, so I’ll just stay home instead. They can’t make me show up, so I’m home free!

What does this have to do with anything?

If you're on trial for murder, the prosecution would never call on you to testify. Why would they? Of course you're going to claim that you didn't do it. Your testimony would be useless.

Murderers are tried with physical evidence linking them to the crime, and witness testimony from other people. Murderers don't even need to be present to be convicted; this happens sometimes if they're considered a danger in the courtroom, or have fled.

The comment I replied to disputed the general notion that courts need to be able to compel behavior.

From a quick search, it appears that a trial in the US cannot begin without the defendant present, although it may proceed if they leave afterwards depending on circumstances.

I don't think that's true: they have something called "trial in absentia". It doesn't happen often though.

I’m aware. The fact that there’s a name for it doesn’t mean it’s allowed in the US. https://en.wikipedia.org/wiki/Trial_in_absentia

Can a court coerce a murder witness to testimony with imprisonment?

In the US, no. The 5th Amendment protects defendants from being coerced into self-incrimination. I was just pointing out how his comment really made no sense here at all, since this article isn't about a criminal being coerced into testifying against themselves (which again is illegal per the 5A), but rather a witness being coerced into testifying when they don't want to for some reason.

You also dispute vaccines based on your comment history which would indicate an unwillingness to engage in rational conversation or to accept scientific facts.

I think the "cruel and unusual" clause requires both to provide any protection.

It's self-evident that most of the actions of the criminal justice system are cruel. I think anyone would agree. However, that phrase in our constitution explicitly leaves the door open for our criminal justice system to perform cruel behaviors, as long as they are in line with the standards of the day (or, if you're an originalist, of the standards of 1791).

So, my response would be that you've tabled the only portion of the debate that is relevant. I'll freely concede that the criminal justice system is cruel, but I wouldn't then argue that the system falls afoul of the 8th amendment.

I can accept your argument, even if it leaves me grumpier than when I first asked the question.

States convention, anyone?

I mean, I would totally agree that the criminal justice system in our country is fundamentally broken and has been for a very long time.

I think there's a ton of opportunity to totally re-work the criminal justice system within the confines of the current amendments. I think that kind of change would be a lot more politically feasible in the near-term (as in, you could make such changes with 45-55% of the population's acceptance, rather than 65-80%).

The 8th amendment says "you can't be worse than X", but it doesn't put any constraints on how "good" we can make the system. I think the political reality is that we need to improve the system significantly before we can constitutionally constraint ourselves to that new bar.

> It's self-evident that most of the actions of the criminal justice system are cruel.

Imprisoning people who have committed crimes is not cruel. It's literally the job of every justice system to do that.

If there was some sort of abuse then sure, but there hasn't been to my knowledge.

> It's literally the job of every justice system to do that.

This makes it usual or common, but it doesn't make it not cruel.

> Imprisoning people who have committed crimes is not cruel.

Imprisoning someone is absolutely cruel. It may be common and accepted (and it certainly is in our current criminal justice system). It may even be just and proper, but it is still cruel.

> Imprisoning people who have committed crimes

That's not what is being called into question. It's imprisoning someone for the express purpose of coercing testimony that smells here.

> How is admittedly imprisoning someone for "coercive" reasons not cruel?

All imprisonment is an attempt to constrain undesired and incentivize desired behavior by imposing unacceptable costs for non-compliance (in fact, so is all law); it is inherently coercive.

Sure. Expand my question then to imprisoning someone to coerce testimony.

It is no more cruel than punitive imprisonment in similar conditions and I think it is undeniable that it is not within any meaning of cruel (even, given current values, one relative to changing cultural values rather than fixed in scope at the time written) that could plausibly be argued to be intended as the meaning of the 8th Amendment.

How is it cruel?

Edit: the following is in response to an assumption the parent meant "cruel" as in "cruel" not "cruel" as in "Cruel and Unusual Punishment." [0]

Depriving them of the ability to work and be a productive citizen. Depriving them of their existing assets (fines), and as stated by Manning and others, that grand juries have tended in the past to victimize those they call as witnesses.

[0]: https://en.wikipedia.org/wiki/Cruel_and_unusual_punishment

Not making commentary on Manning specifically, but what you just described isn't "cruel" in terms of "cruel and unusual punishment". Now, the means of imprisonment or acts taken to you while imprisoned may be cruel, but simply imprisoning someone for breaking the law (contempt of court, in this case) does not rise to the level of "cruel".

Unfair? Unnecessary? Unfitting of the wrong? Those are all things I don't know enough to really say or discuss in an educated manner.

I was responding to the question "How is it cruel" - I didn't mean to opine on the legal phrasing/interpretation of cruel and unusual punishment.

> How is admittedly imprisoning someone for "coercive" reasons not cruel? /I'll table the unusual bit.

Why would I assume you meant the colloquial "cruel" and not the legal "cruel" here? Perhaps you should edit to clarify if your intent was the former as opposed to the latter.

I don't know, why would I assume you mean the legal terminology. I don't assume that it's that when the phrase isn't used in full - I assumed the omission was intentional. Something can be cruel without being unreasonable, and something can be unreasonable without being cruel.

Perhaps you should also edit to clarify your intent.

> that grand juries have tended in the past to victimize those they call as witnesses.

This is the same line of reasoning Alex Jones uses to justify his conspiracies. "The government had Project Northwoods, why isn't [conspiracy] likely?!"

How does that apply to grand juries?

Keeping someone confined? It’s not NOT cruel.

So based on your argument, imprisonment in general is unconstitutional?

I think there is a very rationale case to be made that imprisonment for the sake of punishment is unproductive and immoral - but I can't see any way that it falls under unconstitutional.

By the standard of the 8th amendment, it is not cruel, or else we would not be able to imprison anyone.

the 8th amendment is about "cruel and unusual punishment". As long as the punishment is usual, it can be cruel.

From what I've read "cruel and unusual punishment" is less of an AND statement about punishments being cruel and non-standard and more of a double descriptor of the cruelty with the unusual portion more focused on a sort of terrible inventiveness and also, IMO to stand as a sort of fallback for questionable punishments, if the punishment is innovative it would need to be proven to not be cruel before it's application - and the US has (IMO) failed to adhere to this standard in the past with some methods of administering the death penalty - specifically the electric chair.

I personally don't like death penalties (due to their misuse as a political tool and the general high error rate of judgement) but I believe proper lethal injection fits perfectly within the bounds of not being cruel nor unusual.

So, if someone said that lethal injection was more humane if administered in direct sunlight while the injectee was hanging upside down due to blood movement some-such... assuming they were telling the truth about the efficacy then it'd likely pass the 8th amendment.

Stated more logically, it would be "no cruel punishments and no unusual punishments".

I am European with not so much knowledge about the US justice system, but between this, Julian Assange's recent events [1] and this guy's book [2], it's hard to believe it is an independent and a fair system.

[1] https://en.wikipedia.org/wiki/Julian_Assange#Extradition_hea... [2] https://www.bbc.co.uk/news/world-europe-47765974

We don't have an independent and fair system. It's been highly political and corrupt for a long time, it's just now more blatantly obvious. Partly, this is because of the internet making it easier to make things public and partly because the rich and powerful are feeling less obliged to hide their actions. Too much power has been centralized into just a few hundred people in the U.S.

Is there any book you would recommend on this topic?

Whilst I don't much like what the US government is doing these days, I do wonder if you aren't simply naive. What country are you from ?

Italy ?


France ?


Spain ?


Belgium perhaps ?

https://fr.wikipedia.org/wiki/Affaire_du_Samusocial (use Google translate)

Netherlands ?


Norway ?


Which country has a fair justice/government system in Europe ? Because I don't think there's any ... I don't know about serious government crimes in every country, but certainly they're not exactly hard to find.

This led me down the rabbit hole of finding out how a person could have a moral problem with Grand Juries. Fascinating stuff. It seems they're sometimes used as an information-gathering tool and a method for stifling free speech. Having done further reading, I applaud Ms. Manning's principled stance.

One explanation: https://link.springer.com/chapter/10.1007/978-1-137-10929-3_...

Memory loss seems to be a popular (albeit weak) defense in Washington. [0] I always wondered if trials that accept this as a valid defense aren't setting a precedent. Is there a freedom to subjectively reject such a testimony absent any clear evidence that the person does remember?

[0] https://www.politico.com/story/2017/06/25/washington-defense...

It's a fairly popular defense in legal proceedings. Lawyers have a couple ways to combat it.

- Compelling testimony. Something like "if you testify that you helped this guy rob a bank, we won't go after you for the crime." Usually this involves signing documents swearing to what your testimony is, so you can't go back later.

- Getting more than just testimony. Getting documents (emails, texts, phone records) is often much more valuable because you can't play the "I can't remember" card with those. And lawyers can use those as evidence, and sometimes use the information in those records to get testimony (i.e. "How could you not remember sending all these emails setting up the bank robbery?!" -- "OK, OK, I was there")

- If it's egregious, you can be sanctioned by the court. If you're claiming you don't remember if you saw the defendent murder 3 people right in front of you last week, you better have a pretty good reason for why you can't remember.

Are these fines dischargeable in bankruptcy? If so, there's not much point in adding more on top of an already unmanageable amount.

This shows the whole world how hopeless the US injustice system is. None of this would be possible in a civilized country.

> None of this would be possible in a civilized country.

I think the same concept exists in many civilized countries. In Germany it's called Erzwingungshaft (https://de.wikipedia.org/wiki/Erzwingungshaft) and can be up to half a year for refusing to testify (though you can refuse to testify against yourself or close relatives without repercussions, similar to the 5th amendment).

In Germany Ordnungshaft (https://de.wikipedia.org/wiki/Ordnungsmittel) is the measure for refusing to testify. It is strongly regulated and can't extend longer than 6 weeks without going to a higher court.

Erzwingungshaft is incarceration for failure to pay fines or penalties.

No, it's the other way round if you read the actual law: https://www.gesetze-im-internet.de/stpo/__70.html

(1) Ordnungshaft is what you get if you fail to pay the fine (Ordnungsgeld) for refusing to testify.

(2) Erzwingungshaft is a separate thing, has nothing to do with a fine and can be up to half a year.

I’m hard pressed to find examples of any country allowing witnesses to refuse to testify, the right to silence in common law applies to the accused.

UK, Canada, and even Sweden all have compelled testimony.

Germany doesn't have grand juries though

How are you defining civilized country? Contempt of court does not appear to be unique to the US justice system.

I'm not the OP, but personally, I see civility as a function of the rule of law.

Rule of law is a spectrum, on one end is a place like say, Norway - where everyone is treated with a minimum of respect, criminal justice is mostly reformative, where only a very, very small number of individuals at the top of the social hierarchy will be treated different, mostly, people are treated the same by the law.

On the other end of the spectrum is a place like Somalia, the state has no respect for the individual, criminal justice is punitive and everyone is treated differently based on their social ranking.

In general, the poorer and more dictatorial a country, the more we expect it to be on the low side of this spectrum, and the richer and democratic, the better it should be.

The US is somewhere in the middle of these two, but for many of us, we would expect it to be higher up given the wealth of the country and the democratic nature of our government. I personally hail from a very poor country where our justice system is actually similar in rule of law to the one I feel Americans have.

In terms of this trial, personally I feel locking manning up is punitive and not intended to be cohersive. It's intended to make an example. In fact, I'm not sure why she is being tried at all, I though we had double jeopardy laws, she already went to trial and was imprisoned by the wikileaks debacle. It seems the government is grasping at straws to imprison legal citizens for doing acts that should be rewarded (whistle-blowing). Using the law on an ad-hock basis is exactly the type of behavior that I was mentioning, putting us further toward the Somalia side of the spectrum where rule of law is secondary to rule of power.

This seems to boil down to a disagreement on coercive versus punitive, or more cynically, whether or not you happen to agree with Manning. The court already has an escape clause in place by capping the punishment at 18 months. Manning appears to be seeking that contempt of court be abolished altogether, leaving no way to compel witnesses to testify. All they would need to do is declare "I will not testify, you cannot make me, nothing will change my mind!" and they are let go. Independent of my opinion on Manning's situation, I am not sure that precedent is a net positive. If the punishment were indefinite, it would be a more interesting case. But since it is capped already, I tend to side with the court and let the clock run out.

There are other variables:

I'd agree with you much more if Manning hadn't already been tried and served time for the Wikileaks case.

I also think 18 months is far more punitive than coercive. If it was a month, which is a terribly long time to be confined in a cage, I'd find it more acceptable.

As it stands, 18 months is longer than many people serve for violent crimes. And this person already stood trial and was already imprisoned for this same case.

I'm not sure what the proper length of time is, and I imagine there are as many answers as there are people. 18 months is a long time, for sure, but not unprecedented. There's a guy who has been sitting in jail for more than three years (IIRC) for refusing to decrypt evidence that might result in his conviction. His case has far fewer champions than Manning's, due to the nature of the charges, but he does have some people advocating on his behalf. As far as I know, there is no cap on the length of time he will spend in jail on contempt. He's also looking at a lengthy prison sentence if convicted, so his motivations are more personal.

Precedent... we have precedent for enslavement and pillory. That doesn't make it OK.

In terms of the guy sitting in jail for 3 years. I've heard of that. I strongly feel he should be released or tried on existing evidence (no need to violate the 5th). Two wrongs don't make a right.

The original comment we are answering seems to be correct:

> This shows the whole world how hopeless the US injustice system is. None of this would be possible in a civilized country.

Civilized being defined as the rule of law... it seems he is correct, as the proceedings against manning seem to violate the laws (both the 5th as well as double jeopardy)

Precedent, other things being worse... those don't address the original argument: this is America's barbarism. The example of the guy sitting in jail in-definitively seems to only support this perception, not detract from it. Of course, you are free to perceive it as you like. Some things we'll never agree on. :)

> Manning appears to be seeking that contempt of court be abolished altogether

Manning actually has explicitly stated that she wishes the grand jury process (not merely the ability to compel testimony for that process) to be abolished completely; it is not clear that she feels contempt sanctions and compulsory testimony are improper outside of the grand jury context.

I’m not a big fan of secret courts, they are used to force witnesses with threats to testify against people. Who is to say those witnesses are honest when they are threatened like this?

This is not a secret court, it’s the completely ordinary court for the Eastern District of Virginia.

Grand Juries are held in secret. Counsel for the witness is not allowed.

What's the problem with grand juries? They're supposed to determine whether or not prosecutors can charge you and have an official trial. In other countries, the prosecutor will just charge you directly. The point of a grand jury is to prevent an incompetent or malicious prosecution.

As for counsel for witnesses, they are allowed to hire lawyers. The lawyers aren't allowed in the room with them, but they are allowed to wait outside, and the witness is allowed to leave the room to consult with their lawyer, even after every single question. It's kind of silly, and I'm not really sure why that's the case, but it's hardly an absurd miscarriage of justice.

Also, Chelsea Manning would still wind up in jail over this if there weren't grand juries in the US, it would just be at trial instead.

She's been tried convicted and pardoned. This is a case against Assange where she's a witness.

> She's been tried convicted and pardoned.

No, she has not been pardoned. She received clemency, which is substantively different than a pardon.

Which is tangential to this conversation, but thanks anyway.

Do any "civilized countries" exist under your definition of the term.

Pick a civilized country you think doesn't have some atrocious quirk in their legal system.

That said, I don't disagree, I think I'm trying to say that there's no such thing as a civilized country if we're basing that on the sensibility of their legal system. Everything is on some spectrum of terrible to tolerable to the average person. The average person is not called to a grand jury, so it's not something they get riled up about.

'atrocious quirk' is quite an understatement when you discribe the deficiencies of the us legal system.

Atrocious is a pretty strong word in my opinion. That said, I don’t disagree :)

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