Detaining Chelsea Manning: Other People, Times, and Patterns

Friday, the government responded to Chelsea Manning’s request to be freed in light of Julian Assange’s superseding indictment, in which she argued the grand jury couldn’t use any of her testimony to shore up the existing indictment against Assange.

The government has now indicted Mr. Assange on 18 very serious counts, without the benefit of or apparent need for Ms. Manning’s testimony. The government’s extradition packet must be submitted in finalized form very soon. Any investigation of him after that point will be nugatory. United States v. Moss, 756 F.2d 329, 331-32 (4th Cir. 1985), see also United States v. Kirschner, 823 F. Supp. 2d 665, 667 (E.D. Mich. 2010)(finding that posti-ndictment questioning about the same conduct but different charges than those in the indictment was permissible, but questioning leading only to further information about the same charges would be impermissible). Any further investigation of unindicted targets will likewise be futile, as charges would be time-barred, and in any case, it is perfectly understood that Ms. Manning has no useful information about any parties other than the person behind the online handle “pressassociation.” She is not possessed of any that is not equally available to them, and in any case, her absence has posed no obstacle to indictment and superseding indictment.

The government response suggests this assertion — that there are no charges that they need Manning’s testimony for — is incorrect.

As the government’s ex parte submissions reflect, Manning’s testimony remains relevant and essential to an ongoing investigation into charges or targets that are not included in the superseding indictment. See Gov’t’s Ex Parte Mem. (May 23, 2019). The offenses that remain under investigation are not time barred, see id., and the submission of the government’s extradition request in the Assange case does not preclude future charges based on those offenses, see Gov’t’s Supplement to Ex Parte Mem. (June 14, 2019). Manning’s speculations about the direction of the grand-jury investigation, the purpose of her testimony, and the need for it are insufficient to show otherwise. [My emphasis]

The formulation here is curious, for the reasons laid out below.

Not time barred: Assange was first indicted on March 6, 2018, two days short of the 8-year anniversary of the alleged attempt to crack a password that was the basis for the conspiracy to violate CFAA charge. That suggests they were relying on the claim that the international character of the alleged CFAA charge extended the SOL to eight years, though they could also claim the conspiracy was ongoing if both Manning and Assange were believed to continue to engage in a conspiracy (though given that the conspiracy was defined as hacking, it would seem to be limited to the time until Manning’s arrest on May 27, 2010). I think — but am not sure — that if further charges are not time-barred, the government is either relying on a continued conspiracy, perhaps based off the conspiracy to receive national defense information in the superseding indictment, which because it was charged under espionage has a ten year statute of limitations, or arguing that the conspiracy to violate CFAA extended to other people.

Possibility of additional charges “based on those offenses”: To continue to coerce Manning for charges pertaining to Assange, the government has to argue (and claims it has, in two ex parte filings) that it is seeking additional charges. If I understand how the UK’s extradition process works, unless it gets a waiver, the US government can’t add additional crimes against Assange on top of what it already charged in the extradition packet, but some people say it’s possible to add on instances of the same charges until such time as he’s extradited. That may mean it wants to lard on espionage charges.

Targets not included in the superseding indictment: Manning claims she only has information about “pressassociation” — that is, Assange. But the government may believe there are other people involved in this. It would be unsurprising if the government were homing on other key WikiLeaks figures (I’ve had people wonder whether the government would go after Jake Appelbaum, for example, and there’s another figure people have been chatting about). Recall, too, that the government interviewed David House during this process, extending the time frame and the actions to publicity to supporting Manning that would extend into the period when she was jailed and prosecuted.

Charges not included in the superseding indictment: If there are other people the government is targeting for crimes the statutes of limitation for which haven’t expired (or as part of the conspiracy including Assange and Manning in any kind of continuation), then the government could just charge them.

All that said, there’s something funny with the timing. Manning’s request suggested that Assange was charged sometime between May 14 and 16 — which would put it after she got the subpoena from the new grand jury but before a court hearing on May 16.

Some time between May 14 and May 16, 2019, Julian Assange was charged in a superseding indictment with 17 Counts relating to offenses under the Espionage Act. This indictment was also obtained without the benefit of or apparent need for Ms. Manning’s testimony.

The government corrected that in their response.

Manning claims that Assange was charged in the superseding indictment at some point “between May 14 and May 16, 2019.” Mot. to Reconsider Sanctions 2. That representation is inaccurate. The face of the indictment reflects that it was returned in open court on May 23, 2019, and the signature page bears the same date. See Superseding Indictment, United States v. Julian Paul Assange, No. 1:18-cr-111-CMH (E.D. Va. May 23, 2019) (Dkt. No. 31) (Exhibit B).

Meanwhile — perhaps to show that it had briefed Judge Anthony Trenga about the ongoing investigation before he approved the current contempt finding — the government also unsealed a bench memo submitted back on May 15. That memo also argued they still needed Manning’s testimony — but it was based on the 1-count indictment against Assange.

This indictment against Assange does not affect Manning’s obligation to appear and testify before the grand jury. Under the law, the government cannot use grand jury proceedings for the ‘sole or dominant purpose’ of preparing for trial on an already pending indictment.” United States v. Alvarado,840 F.3d I E4, lE9 (4th Cn. 2016) (quoting United States v. Moss,756 F.2d329,332 (4th Cir. l9E5)). Yet it is equally well settled that, even after returning an indictment, the grand jury may continue investigating new charges or targets that are related to the pending indictment, See id at I89-90; United States v. Bros. Co$t/. Co. of Ohio,2l9 F.3d 300, 314 (4th Cir. 20OO); Moss,7 56 F .2d at 332. At the same time it files this memorandum, the government is filing an ex parte pleading that describes the nature of the grand jury’s ongoing investigation in this matter. See Gov’t’s Ex Parte Submission Regarding Nature of Grand-Jury Investigation (May 14, 2019). As that filing reflects, Manning has testimony that is directly relevant and important to an ongoing investigation into charges or targets that arc not included in the pending indictment. See id. Thus, the recently unsealed indictment against Assange does not provide Manning with just cause for refusing to comply with the Court’s order to testify in front of the grand jury.

That said, they’ve updated that argument in sealed form. As bolded above, though, the government has briefed the court three times on why it still needs Manning’s testimony:

  • May 14, 2019 (not noted in the docket, but possibly docket 3)
  • May 23, 2019 (docket #10)
  • June 14, 2019 (docket #22)

On the day of Assange’s superseding indictment, the government explained to Judge Trenga that the “charges or targets” they were still investigating were “not included in the superseding indictment” and also said they weren’t time-barred. On the day of Friday’s extradition hearing, the government told Trenga that “the government’s extradition request in the Assange case does not preclude future charges based on those offenses.”

All of which might conflict with the public reports that the government will not charge Assange with any further charges. Or it might mean that there are other people that the government wants to weave into these conspiracy charges.

One final point. In the May 15 bench memo, the government discounts Manning’s objections to grand juries (appealing to how they’re supposed to work rather than how they do), and then insinuates she’s refusing to testify out of self-interest.

In addition to their description of what happened when she went before the grand jury, their description of what they deem her self-interested motive not to testify is the only other part of the narrative that remains redacted.

Which is to say the government has some notion of Manning’s motives that — aside from being placed amid a discussion that demonstrably fails to understand her claims about grand juries — they imagine she’s doing all this to benefit herself. That may be true. It may be, for example, that testifying about what she now understands to have happened nine years ago would change the public understanding of what she did. But the government is not willing to share what that is.

9 replies
  1. Vicks says:

    Danial Hale was arrested May 10.
    At the risk of getting ripped on again, he WAS another whistleblower that worked with Assange and I do not believe that the spectacle of his arrest and the timing of it was a coincidence.

    • emptywheel says:

      I’m not aware he worked with Assange. He worked with The Intercept.

      That said it is the same grand jury and one of the same prosecutors, so may be based on a common theory of prosecution, which is alarming, as the government has been targeting The Intercept for some time.

      • Vicks says:

        Good grief did I state that poorly….
        My intention was to show the Trump admin is on a mission to make a spectacle of punishing whistleblowers and those who publish their findings. It would have been so easy to refresh my memory before I posted, instead I included misinformation to make my case.
        Thank you for the poke, I DO learn from my mistakes.

  2. bmaz says:

    I’d like to add in that “aside from being placed amid a discussion that demonstrably fails to understand her claims about grand juries” is, well, less than convincing. Manning’s “claims about grand juries” are ludicrous. Her arguments are so full of shit that her attorneys ought be sanctioned by the court for even arguing them.

    Frankly though, Manning is not just attempting to undermine the grand jury system, her ridiculous arguments undermine the entire system of compulsory process that our system of justice is based on, and not just in criminal cases, but civil ones too.

    If Chelsea Manning can blithely ignore a lawfully and properly issued subpoena simply because it disagrees with her feelings, then any witness can ignore any subpoena. Any entity can blissfully ignore a subpoena duces tecum. Then the Sixth Amendment, and Confrontation and Compulsory Clauses therein, are worthless.

    Chelsea Manning’s argument is despicable.

      • bmaz says:

        Ultimately, yes. Congressional subpoenas are fundamentally in a different posture than court subpoenas though, because the Congressional arm issuing the subpoena has to go through a series of hoops to get a court to enforce their process. A court starts off with that power as to their subpoenas. Much more direct.

  3. Alan Kurtz says:

    In its June 14 Response in Opposition, the government has called Chelsea Manning’s bluff. Prosecutors argue that despite her contention she’s “in the process of losing her home as a result of her present confinement,” she has failed to demonstrate a lack of resources. The Court, they assert, should require her to produce documentation concerning her present and future finances.

    Noting Manning’s claim that she makes a business out of speaking engagements, consulting, and writing, the government suggests that her grand jury resistance may be motivated, at least in part, by self-promotion. “Manning’s recent recalcitrance,” they write, “has raised her profile and returned her to the news cycle, which could increase the demand for her as a speaker after her release. Indeed, Manning has actively sought publicity through the current proceedings—for example, by holding a press conference in front of the courthouse before the contempt hearing and publicly posting messages on Twitter. … Within days after Manning was released from incarceration on Judge Hilton’s contempt order, a publisher announced that it had signed a book deal with Manning. … Manning is also the subject of a recent documentary by Showtime. … the Court needs information about any payments Manning has received or will receive for the documentary to determine whether she has the ability to pay the fines.”

    Accordingly, prosecutors want her to complete a financial affidavit for indigent defendants, to submit financial account statements since her May 2017 release from prison, and to produce all agreements that could provide a source of income or assets, so as to determine future earning capacity.

    I’m not a lawyer, so I can’t speculate on the legal merits of such an approach. But strictly as an interested layman, I find this turn of events remarkable. Especially considering the Twitter thread yesterday in which Chelsea Manning’s support committee (@ResistsChelsea) indicated its crowdfund, opened last March to pay attorney fees and court costs, will now be used specifically to pay her fines. At last report, they’d raised $100K, averaging $1,315 per day. So keeping up with her penalty tab should not be a problem.

    • Alan Kurtz says:

      UPDATE: Andy Stepanian, Vice President of Creative Campaigning for Balestra Media, the public relations firm that represents Chelsea Manning, informed me on June 20 that her ActionNetwork Fundraiser “was created to pay for legal defense related to the Grand Jury” but that she “is not fundraising for the purposes of paying fines.” I apologize for misunderstanding the June 17 Twitter thread in which Chelsea Manning’s support committee (@ResistsChelsea) seemed to suggest that their crowdfund would now be used specifically to pay her fines.

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