4 ms·

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

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

> 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.