Chelsea Manning is not accused of committing any new crime. But she is now a prisoner of the U.S. government once again and may remain one for up to 18 months.
After resisting questions by prosecutors during a secret hearing related to crimes for which she already served seven years in military prison, Manning was ordered into custody on Friday by U.S. District Judge Claude Hilton and told she would remain there “until she purges.”
Manning, whose right to remain silent was supplanted as part of the grand jury process, was subpoenaed last month in the U.S. Justice Department’s not-so-sealed investigation into Julian Assange. Her defiance of this secret inquisition, however, is not about protecting the WikiLeaks founder at all.
Manning says she is resisting because she, like many other politically minded Americans, believes grand juries are an illegal instrument designed to aide prosecutors on fishing expeditions; a tool for stripping witnesses of their constitutional rights that has been historically used against peaceful political activists by men in power who would have them labelled “terrorists” and “enemies of the state.”
“By resisting this grand jury, Chelsea has made the same sacrifice as dozens of activists before her, who have opposed the grand jury system at the expense of their own freedom,” her support committee said in a statement. “Chelsea has already served prison time for standing up against government secrecy and revealing war crimes in Iraq and Afghanistan. We know, and so does the government, that she will not turn tail and allow this shadowy grand jury to eclipse her legacy of speaking truth to power.”
Legally speaking, Manning’s imprisonment is not punitive; it is not considered a form of punishment for something she has done. Her incarceration farther is designed to be coercive; it is intended to break her, to force her to submit. By depriving Manning of her freedom, prosecutors hope that she’ll crave its return hard enough to spill her guts.
Ironically, she already has.
Manning’s association with WikiLeaks nearly a decade ago was dissected in exhaustive detail during her 2013 court-martial, in which all manner of evidence about her brief contact with WikiLeaks, including the transcripts of their conversations, was presented. But now she is meant to regurgitate that story based on her own flawed memories while under the threat of prolonged incarceration if she finds any reason to refuse.
“We hope she changes her mind now,” the prosecutor, Tracy McCormick, told the Associated Press.
Although Manning is constitutionally protected from double jeopardy—from being charged twice for the same crime—her political right to silence has effectively been stripped away. Americans’ right to “remain silent” is viewed, in the case of grand jury proceedings, as an obstacle that can be legally overcome. A half-century ago, Congress agreed and provided prosecutors a tool to do just that.
Immunity is not voluntary for Manning. It is thrust upon witnesses like her for one purpose only: to negate their privilege against self-incrimination granted under the Fifth Amendment.
Grand juries, comprised of 16-23 individuals, are not screened for personal biases as they would be during the voir dire process of a normal trial. There is no judge present; there are no defense attorney; there are no rules of evidence. Indictments may be issued with the support of a dozen jurors who’ve been bombarded by hearsay. They can not only issue indictments, but grant prosecutors the power to invade the private lives of citizens, acquire their personal records and communications, and coerce them into cooperating with the government under threat of confinement, whether they’re guilty of a crime or not.
It is for these reasons that Manning, an activist, says she is refusing to submit. “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,” she said in a statement.
“It is no secret that members of the current administration have openly expressed their hatred for Chelsea,” her supporters said. “Donald Trump himself has tweeted about his desire to undo Barack Obama’s commutation and put Chelsea back in jail. We reject the logic that Chelsea should comply and answer questions regarding events for which she has already provided ample testimony, and we condemn the government’s punitive efforts to back her into a corner.”
The nature of the charges the government hopes to bring against Assange remain a mystery. Anonymous officials have told reporters the case is unrelated to the 2016 election, and the attempt to compel testimony from Manning would appear to support that, at least in part.
It is likely that the government has considered ways to avoid a messy First Amendment battle that pits their own perception of Assange’s publication as a tool for espionage against the passionate feelings jurors may have about freedom of the press. Charges under the Espionage Act, the limits of which have not been fully tested in court, present numerous obstacles in this regard. Notably, the courts have found “specific intent” to be a prerequisite of an espionage conviction.
The government would need to show, in other words, that not only was Assange aware that publishing classified U.S. government documents would do harm to the United States, they’d need to prove that harming the United States—and not merely shedding light on its controversial political practices and military actions—was itself specifically his goal all along.
It is far more likely, given Manning’s involvement now, that the government is searching for ways to avoid this espionage dilemma entirely; to not have their prosecutors positioned opposite the First Amendment in a trial that’s sure to become a massive public spectacle.
As Gizmodo previously reported, there is at least some evidence that Assange has cooperated with convicted criminal hackers in the past in ways that may have left him vulnerable to accessory charges in years-old computer crimes—if only after-the-fact.
Regardless of his case’s outcome, Texas journalist Barrett Brown was at least initially charged after merely sharing a hyperlink to data stolen during the 2011 hack of Stratfor, a private intelligence firm. WikiLeaks, on the other hand, shared with those same hackers actual code designed to aide them in riffling through roughly 5 million emails pilfered from Stratfor. What’s more, other reports suggest WikiLeaks may have also solicited cyberattacks against a U.S. ally abroad, which was definitely a branch of DOJ’s long-running investigation into the organization, as evident by the involvement of FBI agents and informants.
“The court’s decision to imprison Chelsea Manning for refusing to comply with a grand jury is pointless, punitive, and cruel,” her supporters said Friday.
“Chelsea has clearly stated her moral objection to the secretive and oppressive grand jury process. We are Chelsea’s friends and fellow organizers, and we know her as a person who is fully committed to her principles. If Judge Claude M. Hilton and [assistant U.S. attorney] Gordon Kromberg believe that subjecting Chelsea to more punishment will change her mind, they are gravely mistaken.”
“To quote Chelsea,” they added, “we got this.”