Chelsea Manning at Media Convention Berlin in 2018 (Photo: Media Convention Berlin)

Updated at 8:20 AM ET on April 11 to reflect the expulsion and arrest of WikiLeaks editor-in-chief Julian Assange

For more than a month, Chelsea Manning has been jailed in Alexandria, Virginia, for refusing to testify before a grand jury investigating WikiLeaks. Her bold resistance remains crucially important.

Manning was taken into custody after she was charged with civil contempt on March 8. She spent about 27 entire days in conditions of prolonged solitary confinement before she was released into general population at the William G. Truesdale Adult Detention Center.

When she was a U.S. Army intelligence analyst deployed in Iraq, Manning disclosed around a half million or more documents that exposed war crimes, diplomatic misconduct, and other instances of wrongdoing and questionable conduct by U.S. government officials. She was arrested, subject to a court-martial, and convicted of violating the Espionage Act and other related offenses.

Manning received a 35-year sentence and was released after nearly seven years in military prisons after a grassroots campaign successfully pressured President Barack Obama to commute her sentence.

I traveled to Fort Meade and reported extensively on Manning’s court-martial. Later, I exchanged letters with her while she was serving her sentence at Fort Leavenworth prison.

Most in the establishment news media still do not recognize the significant contribution Manning made to the world’s understanding of the U.S. wars in Iraq and Afghanistan and how the State Department promotes foreign policy and the business interests of U.S. corporations. They fail to acknowledge the threat to press freedom posed by the investigation, as well as the cruelty of imprisoning Manning before litigation against her grand jury subpoena concludes.

Senators and representatives in Congress have also largely ignored what is unfolding with this fishing expedition.

One exception was Democratic Representative Alexandria Ocasio-Cortez. Before her release from solitary confinement, she declared, “Chelsea Manning has been trapped in solitary confinement for refusing to answer questions before a grand jury. Solitary confinement is torture. Chelsea is being tortured for whistleblowing, she should be released on bail, and we should ban extended solitary in the U.S.”

Ocasio-Cortez’s statement was an expression of support for someone still severely targeted by her own government. She broke from the bipartisan political consensus, recognized Manning committed acts of whistleblowing, and for that, she continues to face punishment.

But her statement dealt specifically with the injustice of holding Manning in prolonged solitary confinement. It did not address the grand jury investigation itself.

To be clear, the fact that Manning was subpoenaed suggests the investigation has nothing to do with anything that happened — or allegedly happened — during the 2016 presidential election with emails from Hillary Clinton’s campaign. Prosecutors are focused on what WikiLeaks published in 2010.

President Barack Obama’s Justice Department apparently determined in 2013 that they could not prosecute WikiLeaks editor-in-chief Julian Assange for publishing documents without exposing U.S. news organizations, like the New York Times or Washington Post, to potential prosecutions.

“There is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents,” anonymous officials told the Post.

But the “New York Times problem” did not persuade the Obama administration to formally shut down the investigation, leaving President Donald Trump’s Justice Department to revive it.

On April 11, 2019, British authorities arrested Assange in relation to an extradition request from the United States.

Trump’s Justice Department seems convinced they can target how Assange and other staff at WikiLeaks obtained documents and circumvent First Amendment issues that stopped Obama from indicting anyone. Yet, even if that is true, this poses risks to the news gathering process itself.

James Goodale, who served as general counsel for the New York Times when the newspaper published the Pentagon Papers, warned in Harper’s Magazine, “Should Trump’s Justice Department succeed in prosecuting Assange, the only safe course of action for a reporter would be to receive information from a leaker passively.”

“As soon as a reporter actively sought the information or cooperated with the source, the reporter would be subject to prosecution,” Goodale added. “National security reporting, however, is not done by receiving information over the transom. It is naïve to think that reporters can sit around waiting for leaks to fall into their laps.”

“In a recent interview, the longtime investigative reporter Seymour Hersh told me that he obtains classified information through a process of ‘seduction’ in which he spends time trying to induce the source into giving up the information. If he isn’t allowed to do that, he says, ‘It’s the end of national security reporting.’”

Goodale pointed out the Justice Department under Obama viewed this kind of “seduction” as a part of a potential conspiracy between a leaker and reporter. When the Justice Department prosecuted State Department employee Stephen Jin-Woo Kim for a leak to Fox News reporter James Rosen, they referred to Rosen as a “co-conspirator.”

An affidavit submitted to a district court in the District of Columbia showed Rosen asked Kim for information until Kim finally disclosed details on North Korea.

“If this type of conspiracy theory were to be applied in a criminal trial, a court would end up examining every effort by a reporter to obtain information,” Goodale argued. “It would criminalize the reporting process. Reporters and their publishers would argue that the First Amendment protected news-gathering efforts such as Rosen’s, but the result would be in doubt in every case.”

Goodale concluded, “If reporters can be indicted for talking to their sources, it will mean that the government has created the equivalent of a UK Official Secrets Act — through judicial fiat, without any legislative action.”

Albert V. Bryan United States Courthouse in Alexandria, Virginia, home to the district court for the Eastern District of Virginia, where the grand jury is empaneled (Photo: Tim Evanson)

Furthermore, there are several issues that Manning’s attorneys have raised in court as she fights the subpoena that was served against her.

Prosecutors seem interested in a lengthy statement Manning offered during her military court-martial for Espionage Act-related offenses, where she outlined her role in the disclosures to WikiLeaks. She meticulously described each set of information, why she was drawn to releasing the documents to the public, and how she downloaded, prepared, and electronically transferred the documents to the media organization.

Citing the general history of grand jury abuses by the U.S. government, Manning’s attorneys stated, “Manning has reason to believe that she will be subject to questions intended to elicit information not properly within the scope of the grand jury.”

Those questions could focus on activities that are protected by the First Amendment, such as newsgathering and “other forms of protected speech and associations.”

“Indeed, the mere issuance of the subpoena is already serving to chill her exercise of constitutional rights,” her attorneys added.

Manning’s right to privacy under the Fourth Amendment may also be at stake.

In her challenge to the subpoena, Manning alleged the government has engaged in “intrusive surveillance” against her “including surveillance vans parked outside her apartment, federal agents following her, and strangers attempting to goad her into an absurdly contrived conversation about selling dual-use technologies to foreign actors.”

Judge Claude Hilton never required the government to respond to Manning’s claim that her Fourth Amendment rights were violated and so the subpoena should be quashed. That matters because individuals have successfully quashed subpoenas before by alleging illegal surveillance.

In 1971, President Richard Nixon’s Justice Department launched two grand jury investigations in Boston that targeted journalists and antiwar activists, who were involved in distributing the Pentagon Papers to news outlets.

Richard Falk, an international law professor at Princeton University, appeared before a judge in October of that year to quash the subpoena. His attorney alleged the government gathered information on Falk through illegal wiretapping. The government never denied or admitted to the surveillance so a motion to hold Falk in contempt was dismissed.

In Manning’s case, the Trump administration should have to disclose and justify any surveillance, or if prosecutors insist on maintaining secrecy, withdraw the charge of contempt and release Manning from jail.

Her defiance is within a rich American tradition of resistance against abusive grand juries, a tool the U.S. government has used to target activist communities. She has boldly asserted her rights in spite of the collective silence of politicians, even though civil liberties are at stake.

Manning’s resistance should move the editorial boards of major news organizations, like the New York Times and Washington Post, to express their appreciation that her challenge has brought a small level of transparency to an investigation, which carries profound implications for their work.

But they apparently are too concerned with how such statements might affect their access to the halls of power to take a stand, even if it is in their own self-interest.