Appeals court to Manning: If you want out of jail, start talking

Chelsea Manning may not believe in the grand jury system, but the 4th Circuit Court of Appeals certainly does. In a terse, unanimous decision handed down this morning, the court rejected Manning’s appeal of a contempt citation for refusing to testify while immune to prosecution. It didn’t take long for the three judges to dispense with Manning’s conspiracy theories and keep her in jail for as long as the grand jury continues its investigation:


Appellant Manning argues on appeal that the district court improperly denied her motion concerning electronic surveillance, failed to properly address the issue of grand jury abuse, and improperly sealed the courtroom during substantial portions of the hearing. Upon consideration of the memorandum briefs filed on appeal and the record of proceedings in the district court, the court finds no error in the district court’s rulings and affirms its finding of civil contempt. The court also denies appellant’s motion for release on bail.

Manning can ask for an en banc hearing or appeal this decision to the Supreme Court, but the issue is so straightforward that it’s hardly likely to get a grant of certiorari. The full Fourth Circuit won’t be much more sympathetic either. After having been convicted of transmitting classified material, Manning has a double-jeopardy defense against being tried on any charges related to that operation. That means a grand jury can subpoena her testimony and Manning has no Fifth Amendment right to refuse to testify. Manning can toss around any excuses and conspiracy theories she likes, but the grand jury has the power to compel testimony, and judges have the authority to impose jail time without bail for refusing to do so.

Politico court reporter Josh Gerstein notes that the Department of Justice’s full-court press on Manning is clearly related to their attempts to shore up a case against Wikileaks founder Julian Assange:

Prosecutors appear to be pressing for Manning’s testimony in order to bolster their case against WikiLeaks founder Julian Assange, who was expelled earlier this month from London’s Ecuadorian Embassy, where he’d been holed up for seven years.

After he was ousted from the embassy, Assange was arrested on a longstanding bail-skipping charge and prosecutors revealed that Assange was secretly indicted by a U.S. grand jury back in March 2018 on charges of conspiring with Manning to hack a password for a military computer system. He now faces extradition proceedings in England.

Many U.S. lawmakers have said they also want the Australian citizen and transparency activist prosecuted for conspiring with the Russians to hack Democratic Party emails in advance of the 2016 presidential election. However, adding those charges or others could complicate the extradition process and give Assange’s defense fresh arguments that he’s being accused of “political” crimes excluded from the extradition treaty between the U.S. and the United Kingdom.


Manning had nothing to do with the DNC hack, though. By the time that got perpetrated, Manning had been cooling heels in Fort Leavenworth for years, having been first arrested in 2010 and sentenced three years later. Gerstein makes a good point about the Trump administration’s interest in keeping a narrower focus for Assange, and the demand from Manning falls well within that more limited scope.

While the US has played its cards close to the vest after announcing Assange’s indictment and extradition demand, Ecuador has begun broadening its effort regarding Assange. The New York Times reported this weekend that Ecuadorian police arrested an Assange associate over hacking attempts in the country. Others accuse the Lenin Moreno administration of running roughshod over privacy activists:

The man arrested, Ola Bini, a Swedish cybersecurity expert and digital privacy advocate, was detained April 11 on charges that he had attacked computer systems in the country.

As evidence, prosecutors pointed to the laptops, iPads, iPods, encrypted USB sticks and credit cards they found when they searched Mr. Bini’s home and possessions. They noted that Mr. Bini traveled often and had spent more than $230,000 in internet services over the past five years.

Ecuador’s officials particularly cited Mr. Bini’s contacts with Mr. Assange, who faces extradition to the United States on charges of conspiring to hack an American government computer to obtain national security information.

Last week, President Lenin Moreno of Ecuador said that Mr. Bini was one of “many hackers” who had visited Mr. Assange at the country’s embassy in London, where the WikiLeaks founder had sought refuge. “Probably to receive instructions,” Mr. Moreno added.

But as news of the detention has spread, human rights and digital security advocates have begun to question the grounds for the detention, arguing that Mr. Bini, 36, worked to prevent illegal access to private information.


Bini’s girlfriend claims that the government misunderstood his work, and that he was trying to safeguard against government hacking rather than the other way around. That kind of work certainly can produce some gray areas, and perhaps Bini’s contacts with Assange on his descent into persona non grata status convinced Ecuadorian officials that Bini landed more on the wrong side of the law. Moreno certainly has incentive to push that line, too; at least for a while, Assange’s asylum was popular in Ecuador and his graceless exit might create some real problems for Moreno. The more he can convince people that Assange was running a massive hacking operation while exploiting their hospitality, the better off he will be.

If that’s the case, though, one could wonder why Moreno didn’t just haul Assange to Ecuador to face prosecution there. The likeliest answer is that the headache that would have produced would have been far worse, and a public trial potentially destabilizing. Better to let the Brits deal with Assange, and then the Americans, while Moreno conducted a little payback to Assange’s allies already in his jurisdiction. Moreno had better be careful — not too many Ecuadorian politicians get ahead by giving the US political cover.

However, the US might not get first crack at Assange after all. The Swedes are clearing their throats about reinstating rape charges against the Wikileaks founder, and British MPs want the government to prioritize that extradition over ours:


British lawmakers are heaping pressure on the government to make sure that WikiLeaks founder Julian Assange faces Swedish justice if prosecutors there reopen a rape investigation against him.

There is mounting concern that Assange should not be allowed to sidestep the Swedish investigation stemming from his 2010 visit to Sweden. The complaints from two women eventually led him to seek refuge in the Ecuadorian Embassy in London rather than return to Sweden for questioning.

Some are calling for the British government to extradite Assange to Sweden, if it makes an official request, rather than to the U.S., which seeks him on conspiracy charges.

More than 70 British lawmakers signed a letter late Friday urging Home Secretary Sajid Javid to “do everything you can to champion action that will ensure Julian Assange can be extradited to Sweden in the event Sweden makes an extradition request.”

Who’d be the biggest beneficiary of that decision? The same person who just lost in the Fourth Circuit.

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