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She claims protection from the "First, Fourth, and Sixth Amendment, and other statutory rights", not the fifth amendment. I assume first because she would be u

She claims protection from the "First, Fourth, and Sixth Amendment, and other statutory rights", not the fifth amendment. I assume first because she would be under some sort of gag order about the proceedings. Fourth I'm not getting; unreasonable search and seizure? Sixth is probably the public part of "public and speedy" trial, but seems slightly dubious, since she is not on trial, and apparently has an immunity deal in place, and my understanding is that transactional immunity breaks the shield of the fifth amendment, so it seems that it would apply here as well.

deleted 8y ago
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pmoriarty 8y ago
"She claims protection from the "First, Fourth, and Sixth Amendment, and other statutory rights", not the fifth amendment. I assume first because she would be under some sort of gag order about the proceedings." IANAL, but from what I understand, grand jury witnesses are not bound to secrecy (though everyone else in a grand jury is). So I'm not sure where the First Amendment challenge would come from.
- andrewla 8y ago
  Not in general bound to secrecy, but apparently this is some sort of "secret" grand jury that's secret in a way that grand juries are not usually secret. I can't seem to find any details on this point though, so it might just be overblowing the default "secrecy" that goes into normal grand jury proceedings.
  - Bartweiss 8y ago
    One interesting theory I've seen: Manning's appeal to the First Amendment might imply she's under an NSL or other gag order? I can sort of picture an argument where Manning has been barred from speaking publicly on some topic, and so being compelled to give secret testimony would turn a legal gag order into an illegal one. 100% speculation, but it would at least fit a few of those pieces together.
    - dragonwriter 8y ago
      > One interesting theory I've seen: Manning's appeal to the First Amendment might imply she's under an NSL or other gag order? It's a bizarre claim that this would even be relevant, but the whole claim of both constitutional and statutory privilege against immunized testimony before a federal grand jury (on matters where her own conduct would probably already be largely protected by double jeopardy, even without immunization) is pretty facially bizarre, so maybe. It's impossible to tell the basis of the claim without the (sealed) motion filed to quash the subpoena. > I can sort of picture an argument where Manning has been barred from speaking publicly on some topic, and so being compelled to give secret testimony would turn a legal gag order into an illegal one. I can't see a case where that would be the case (public gag orders for things that one still must discuss in closed proceedings aren't all that uncommon), but that doesn't stop her from arguing it even if it is wrong.
      - Bartweiss 8y ago
        Yeah, I didn't mean to imply I think any of this will hold, or necessarily should hold. Manning's justifications don't make much sense, and I'm guessing tossing out three amendments was just done to ensure anything that might be useful at the contempt hearing was included. (I don't actually know this for sure, but I assume you can't fight a contempt charge with an argument you didn't use initially, just like you can't appeal on a defense you didn't start with. If I invoke the 3rd in court and get shot down, surely I can't then fight my contempt charge with a rationale under the 5th?) At this point, the only thing that seems like an open question is whether the bizarre arguments stem from not having a legal rationale for the refusal, or being in a bizarre legal situation. We've seen enough circular arguments like "you don't have standing to sue for this information, because you can't prove you're affected, because you can't see the information" that I'm not ruling anything out. That said, my first guess is that Manning's team knows none of these arguments will stick, but wants to contest the charge and provoke a debate. One, four, and six certainly look like the amendments I'd pick if I wanted to use the contempt hearing to talk about government overreach.
  - dragonwriter 8y ago
    > Not in general bound to secrecy, but apparently this is some sort of "secret" grand jury that's secret in a way that grand juries are not usually secret. I don't see any indication that that's the case; the media habitually applies “secret” as a modifier to “grand jury” when no more than routine grand jury secrecy applies because it bumps up the perceived intensity of a story.
    - andrewla 8y ago
      Her statement (from twitter [1]) reads in part > Yesterday, I appeared before a secret grand jury after being given immunity for my testimony. So it's not strictly the media, Manning has used the language herself. In another tweet [2] she says > I will not comply with this, or any other grand jury ... 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. The secrecy might not be the central pivot given this statement -- rather perhaps her objection is to the prosecution against Wikileaks that the grand jury is considering. [1] https://twitter.com/xychelsea/status/1103713700391907329 https://twitter.com/xychelsea/status/1103713700391907329 [2] https://twitter.com/xychelsea/status/1104094170950578177 https://twitter.com/xychelsea/status/1104094170950578177
      - dragonwriter 8y ago
        Yes, but in Manning's case it's clearly political, to call attention to routine grand jury secrecy and why she intends to defy any grand jury.
- Bartweiss 8y ago
  The First Amendment claim seems awfully difficult. Actually, all three do; I have no idea what the Fourth is doing there. There are a few possibilities other than the gag order; in particular, it could be a reference to a privacy/free-association claim that answering this subpoena would be injurious to people other than Manning or Wikileaks. NAACP v. Alabama accepted that, but this would be an enormous stretch from those circumstances. Connecting it to the closed nature of the hearing would be even harder, but you might get there by arguing that it could close information which wouldn't be revealed by later actions taking place in secret courts. It could also be an argument in the alternative, ignoring the private/public aspect. As for the gag order, that might stick if it's not simply binding Manning to secrecy as a grand jury witness? If she's received a National Security Letter or something of the sort, there might be an argument that she's being compelled to speak in private in a way that collides with other restrictions the government has placed on her.

deleted 8y ago

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pmoriarty 8y ago

"She claims protection from the "First, Fourth, and Sixth Amendment, and other statutory rights", not the fifth amendment. I assume first because she would be under some sort of gag order about the proceedings." IANAL, but from what I understand, grand jury witnesses are not bound to secrecy (though everyone else in a grand jury is). So I'm not sure where the First Amendment challenge would come from.

andrewla 8y ago
Not in general bound to secrecy, but apparently this is some sort of "secret" grand jury that's secret in a way that grand juries are not usually secret. I can't seem to find any details on this point though, so it might just be overblowing the default "secrecy" that goes into normal grand jury proceedings.
- Bartweiss 8y ago
  One interesting theory I've seen: Manning's appeal to the First Amendment might imply she's under an NSL or other gag order? I can sort of picture an argument where Manning has been barred from speaking publicly on some topic, and so being compelled to give secret testimony would turn a legal gag order into an illegal one. 100% speculation, but it would at least fit a few of those pieces together.
  - dragonwriter 8y ago
    > One interesting theory I've seen: Manning's appeal to the First Amendment might imply she's under an NSL or other gag order? It's a bizarre claim that this would even be relevant, but the whole claim of both constitutional and statutory privilege against immunized testimony before a federal grand jury (on matters where her own conduct would probably already be largely protected by double jeopardy, even without immunization) is pretty facially bizarre, so maybe. It's impossible to tell the basis of the claim without the (sealed) motion filed to quash the subpoena. > I can sort of picture an argument where Manning has been barred from speaking publicly on some topic, and so being compelled to give secret testimony would turn a legal gag order into an illegal one. I can't see a case where that would be the case (public gag orders for things that one still must discuss in closed proceedings aren't all that uncommon), but that doesn't stop her from arguing it even if it is wrong.
    - Bartweiss 8y ago
      Yeah, I didn't mean to imply I think any of this will hold, or necessarily should hold. Manning's justifications don't make much sense, and I'm guessing tossing out three amendments was just done to ensure anything that might be useful at the contempt hearing was included. (I don't actually know this for sure, but I assume you can't fight a contempt charge with an argument you didn't use initially, just like you can't appeal on a defense you didn't start with. If I invoke the 3rd in court and get shot down, surely I can't then fight my contempt charge with a rationale under the 5th?) At this point, the only thing that seems like an open question is whether the bizarre arguments stem from not having a legal rationale for the refusal, or being in a bizarre legal situation. We've seen enough circular arguments like "you don't have standing to sue for this information, because you can't prove you're affected, because you can't see the information" that I'm not ruling anything out. That said, my first guess is that Manning's team knows none of these arguments will stick, but wants to contest the charge and provoke a debate. One, four, and six certainly look like the amendments I'd pick if I wanted to use the contempt hearing to talk about government overreach.
- dragonwriter 8y ago
  > Not in general bound to secrecy, but apparently this is some sort of "secret" grand jury that's secret in a way that grand juries are not usually secret. I don't see any indication that that's the case; the media habitually applies “secret” as a modifier to “grand jury” when no more than routine grand jury secrecy applies because it bumps up the perceived intensity of a story.
  - andrewla 8y ago
    Her statement (from twitter [1]) reads in part > Yesterday, I appeared before a secret grand jury after being given immunity for my testimony. So it's not strictly the media, Manning has used the language herself. In another tweet [2] she says > I will not comply with this, or any other grand jury ... 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. The secrecy might not be the central pivot given this statement -- rather perhaps her objection is to the prosecution against Wikileaks that the grand jury is considering. [1] https://twitter.com/xychelsea/status/1103713700391907329 https://twitter.com/xychelsea/status/1103713700391907329 [2] https://twitter.com/xychelsea/status/1104094170950578177 https://twitter.com/xychelsea/status/1104094170950578177
    - dragonwriter 8y ago
      Yes, but in Manning's case it's clearly political, to call attention to routine grand jury secrecy and why she intends to defy any grand jury.
Bartweiss 8y ago
The First Amendment claim seems awfully difficult. Actually, all three do; I have no idea what the Fourth is doing there. There are a few possibilities other than the gag order; in particular, it could be a reference to a privacy/free-association claim that answering this subpoena would be injurious to people other than Manning or Wikileaks. NAACP v. Alabama accepted that, but this would be an enormous stretch from those circumstances. Connecting it to the closed nature of the hearing would be even harder, but you might get there by arguing that it could close information which wouldn't be revealed by later actions taking place in secret courts. It could also be an argument in the alternative, ignoring the private/public aspect. As for the gag order, that might stick if it's not simply binding Manning to secrecy as a grand jury witness? If she's received a National Security Letter or something of the sort, there might be an argument that she's being compelled to speak in private in a way that collides with other restrictions the government has placed on her.