Chelsea Manning, the Army whistleblower, is again in jail less than two years after her release from prison on a grant of clemency from President Obama. US District Court judge Claude Hilton ordered Manning to be taken into custody for after she refused to answer questions before a grand jury thought to be targeting Julian Assange for prosecution. (Cross-posted from WhistleblowingToday.org.)
[Document: subpoena signed by Assistant U.S. Attorney Gordon Kromberg ordering manning to appear before the grand jury in Alexandria, Virginia.]
The federal government accidentally revealed last year that it is pursuing unspecified charges against the founder of Wikileaks, an internet publisher of whistleblower disclosures. Former Wikileaks volunteer David House, previously questioned by the grand jury, said the questions concerned Wikileaks and the “war logs” obtained by Manning.
“Manning’s decision to fight her subpoena is an act of resistance against government repression and in defense of a free press.” — The Intercept
Grand juries are authorized by the US Constitution and some state constitutions to review potential prosecutions for serious crimes, but the process is secretive and one-sided, thus vulnerable to abuse. The prosecutor selects the jury, decides what evidence the jury hears, examines the witnesses, and advises jurors on legal issues. Defense attorneys are barred from the proceedings and cannot provide exculpatory evidence or cross-examine witnesses. Witnesses have no right of silence–even if they are possible defendants. Like Chelsea Manning, witnesses who fail to comply “can be held in civil contempt, convicted for criminal contempt, or both.” (Doyle)
The period following World War I—known as the First Red Scare—was rife with grand jury indictments of anti-war activists, socialists and union members for alleged sedition and espionage. Later, the Nixon administration subpoenaed more than 1,000 activists for over 100 grand jury inquisitions that targeted the anti-war movement, the women’s movement and the black nationalist movement.
England’s infamous Star Chamber court also targeted religious and political dissenters until its abolishment in 1641. Like today’s grand jury witnesses, Star Chamber witnesses faced a “trilemma” although the punishments differed.
Star Chamber courts “left witnesses with the “cruel trilemma” of (1) refusing to take the oath, which constituted contempt and subjected the person to torture; (2) taking the oath and telling the truth about their religious beliefs, which, if heretical, was punishable by death; or (3) taking the oath and lying, which was also punishable by death. In other words, this inquisitorial system countenanced methods of interrogating persons designed to lead only to confessions. (American Bar)
In two post-9/11 grand jury cases, Gordon Kromberg again was the federal prosecutor. In one, Dr. Sami Al-Arian, a former tenure-track professor at the University of South Florida and a Palestinian activist, was falsely accused of providing “material support” for terrorism. In the other case, Kromberg forced George Mason University graduate Sabri Benkahla to testify to a grand jury after acquittal on terrorism charges, then charged Benkahla with perjury. The Benkahla case echoes in Kromberg’s grand jury subpoena of Chelsea Manning and evokes the image of Inspector Javert.
The National Association of Criminal Defense Lawyers has proposed reforms to the grand jury process because it has frequently failed as a “bulwark against ‘hasty, malicious and oppressive prosecution.'” Rather, as Deutsch writes, “In periods of great turmoil and dissent, when the exploited and oppressed vocally expressed their views, often for the first time, the grand jury, rather than protecting the rights of the dissenters, stood on the side of the rich and powerful, to protect the status quo.” Whistleblowers, as challengers of the status quo, are therefore highly vulnerable.
Philosopher Henry David Thoreau famously wrote, “It takes two to speak the truth: one to speak and one to hear. Sadly, it now takes three to speak the truth: one to speak, one to hear—and one to defend the first two in court.
Individuals who have been indicted, subpoenaed, or contacted by the federal government can contact the National Lawyers Guild Hotline at 415-285-1041.