By Olivia Rojas
Julian Assange and WikiLeaks
In 2006, Julian Assange, an Australian computer-programmer and journalist, launched WikiLeaks in an effort to combat “acts of censorship.”[1] In this pursuit, Assange and those working for WikiLeaks published various classified and/or confidential documents. Throughout its 12-year existence, WikiLeaks’ staff gathered information from anonymous whistleblowers and released various secret documents and information to the public. Most notably, the site published (1) footage of a mass murder by a US Apache helicopter; (2) around 250,000 US State Department cables (something akin to an email);[2] (3) controversial emails from various Democratic National Convention Committee officials; (4) Vault 7 CIA documents, which highlighted the organization’s ability to hack into the public’s personal electronics; and (5) Guantanamo Bay Prison’s operating manual.[3] Needless to say, Assange and those working with WikiLeaks were responsible for the public distribution of an incredible amount of top-secret and coveted information.
From its beginnings, WikiLeaks was nothing short of provocative. Thousands of government documents were available to the public, effectively airing the government’s “dirty laundry.”[4] Additionally, as a result of his involvement with WikiLeaks, the United States is currently seeking extradition for Assange under the Espionage Act.[5] This is the first time in US history that a journalist is facing criminal charges for revealing government information.[6] The Espionage Act, promulgated in 1917, criminalized the conveyance of information with the intent to disrupt U.S. war efforts. [7] More specifically, the Act limits First Amendment rights in that citizens are prohibited from “obtaining information, recording pictures, or copying descriptions of any information relating to the national defense” to the detriment of the United States or the benefit of another country.[8] However, the Supreme Court justified this infringement, holding that the Act is constitutional so long as it is utilized to combat the potential danger involved in the dissemination of private government information.[9] In 1918, the U.S. government promulgated the Sedition Act,[10] which bolstered the mission of the Espionage Act. Most notably, the Sedition Act criminalized public disloyalty against the US government.[11] In 1921, Congress repealed the act,[12] and the crime of sedition became mostly obsolete after New York Times v. Sullivan.[13]
Chelsea Manning’s Involvement
In 2010, Chelsea Manning, a former US Army intelligence analyst, provided classified information to WikiLeaks. The US Army charged her with unauthorized possession and distribution of “secret diplomatic and military documents.”[14] In court, Ms. Manning said she leaked the documents to “spark a public debate.”[15] She was sentenced to 35 years in prison, but former President Barack Obama commuted her sentence after she had already served seven years in custody.[16] In the time after her release, she has been jailed twice for contempt.[17] Specifically, she refused to testify before a grand jury responsible for investing WikiLeaks.[18]
Grand jury trials differ significantly from the commonly understood jury trial, also referred to as a petit jury.[19] While both juries are comprised of citizens fulfilling their civic duties as jurors, the two trials differ in terms of purpose, formality, voting, evidentiary requirements, confidentiality, and weight. The traditional jury is comprised of 6-12 people, whereas the grand jury usually has between 16 and 23 people.[20] Grand juries in federal trials usually serve an 18-month term unless discharged earlier.[21] Unlike the petit jury, grand juries are not responsible for determining a defendant’s guilt or innocence.[22] Instead, their mission is to determine whether enough evidence exists to indict a person for a specific charge or charges. In fact, defendants are actually barred from attending a grand jury trial.[23]
Because of its nuanced purpose, the grand jury also has varied evidentiary and formality requirements. In a grand jury trial, the Federal Rules of Evidence largely do not apply.[24] Most uniquely, there is no judge present in a grand jury trial; the prosecution works with the jury to provide them information about the law.[25] To this end, the prosecution is not barred by hearsay and circumstantial evidence restrictions and may present any information he or she believes is important to an evaluation of the case.[26] This creates a more relaxed environment in a grand jury trial. In turn, grand jury trials are strictly confidential, and their contents are largely unknown to the general public. There is great controversy over the Furthermore, perhaps the most important distinction is that grand juries need only have a supermajority to support an indictment, unlike than the unanimous standard in a traditional jury trial.[27] The Supreme Court has interpreted the constitution to require the hearing take place for federal felonies, although a prosecutor may still charge an individual absent the grand jury’s indictment.[28]
The U.S. Attorney’s Office first subpoenaed Chelsea Manning to appear to testify in a grand jury hearing scheduled for March 5, 2019.[29] She was also given immunity for her testimony.[30] While subpoenaed witnesses are usually required to give their testimony, they are still afforded various constitutional rights on the stand. This includes the right against self-incrimination proscribed in the Fifth Amendment.[31] However, it does not allow the subpoenaed witness to unilaterally refuse to participate in the grand jury’s investigation. In fact, a district court judge may find a recalcitrant witness[32] to be in contempt of court and may impose a fine[33] or sentence them to imprisonment for no longer than 18 months. This contempt is used as a means to compel and coerce the witness to testify.[34] When the witness complies and agrees to cooperate, he or she will be released from custody.[35]
When Manning refused to testify, a
judge found her to be in contempt. Manning openly criticized the grand jury
process and refused to cooperate indefinitely.[36]
She is not the only one to take issue with the grand jury process; Nils Melzer,
a United Nations official, described the process as “incompatible with the
international human rights obligations of the United States.”[37]
Manning was later released following that grand jury’s expiration, but the U.S.
Attorney’s office issued another subpoena to appear before a second grand jury
to which she promptly denied again.[38] She returned to jail with a $500/day fine
after 30 days, and a $1,000/day fine after 60 days.[39]
On March 12, the second grand jury expired, and Manning was released from jail.[40]
However, the judge did not relieve her of her fines, which are in excess of
$256,000, and ordered that they be “due and payable immediately.”[41]
In the meantime, Manning’s supporters created a GoFundMe campaign to help pay
for her fines.[42]
[1] Julian Assange, Julian Assange: Why I Founded Wikileaks, Newsweek (Dec. 24, 2014, 9:35 AM), https://www.newsweek.com/julian-assange-why-i-founded-wikileaks-294283.
[2] Kevin Spak, What the Heck is a ‘Cable’ Anyway, Newser (Nov. 30, 2010, 2:30 PM) https://www.newser.com/story/106459/what-the-heck-is-a-cable-anyway.html.
[3] 6 of WikiLeaks’ Biggest Ever Document Dumps, RT (Apr. 16, 2019), https://www.rt.com/news/456740-wikileaks-biggest-ever-leaks/.
[4] Emily Butselaar, Dig Deep for Wikileaks, The Guardian (Jan. 29, 2010, 12:06 PM), https://www.theguardian.com/commentisfree/libertycentral/2010/jan/29/wikileaks-shut-down.
[5] Deanna Paul, How the Indictment of Julian Assange Could Criminalize Investigative Journalism, Wash. Post. (May 27, 2019, 6:00 AM), https://www.washingtonpost.com/national-security/2019/05/27/how-indictment-julian-assange-could-criminalize-investigative-journalism/.
[6] Id.
[7] Espionage Act of 1917, Pub. L. No. 65-24, 40 Stat. 217.
[8] David Asp, Espionage Act of 1917 (1917), Middle Tenn. St. U., https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917 (last updated May 2019).
[9] Schenck v. United States, 249 U.S. 47, 50–52 (1919).
[10] Sedition Act of 1918, Pub. L. No. 65-150, 40 Stat. 553.
[11] Id.
[12] U.S. Congress Passes Sedition Act, Hist., https://www.history.com/this-day-in-history/u-s-congress-passes-sedition-act (last updated July 28, 2019).
[13] 376 U.S. 254, 283–284 (1964).
[14] Chelsea Manning: Wikileaks Source and her Turbulent Life, BBC (May 16, 2017), https://www.bbc.com/news/world-us-canada-11874276.
[16] Jacey Fortin, Chelsea Manning Ordered Back to Jail for Refusal to Testify in WikiLeaks Inquiry, N.Y. Times (May 16, 2019),
[17] Id.
[18] Id.
[19] Types of Juries, U.S. Cts. https://www.uscourts.gov/services-forms/jury-service/types-juries (last visited Mar. 14, 2020).
[20] Id.
[21] 18 U.S.C. § 3331 (1988).
[22] 7 Key Differences Between Federal Grand Juries and Trial (Petit) Juries, WKM-law (May 21, 2016), https://wkm-law.com/7-key-differences-federal-grand-juries-trial-petit-juries/.
[23] Id.
[24] Federal Rules of Evidence, Law.Jrank, https://law.jrank.org/pages/6806/Federal-Rules-Evidence.html (last visited Mar. 14, 2020).
[25] 7 Key Differences Between Federal Grand Juries and Trial (Petit) Juries, supra note 22.
[26] Id.
[27] How Does a Grand Jury Work?, FindLaw, https://criminal.findlaw.com/criminal-procedure/how-does-a-grand-jury-work.html (last visited Mar. 14, 2020).
[28] Charging, U.S. Dep’t of Just. https://www.justice.gov/usao/justice-101/charging (last visited Mar. 14, 2020).
[29] Tal Axelrod, Chelsea Manning Subpoenaed for Testimony in Julian Assange Probe: Reports, The Hill (Mar. 2, 2019, 12:10 PM), https://thehill.com/policy/cybersecurity/432320-chelsea-manning-subpoenaed-for-testimony-in-julian-assange-probe-reports.
[30] Barkkton Booker, Judge Orders Chelsea Manning Released From Jail, NPR (Mar. 12, 2020, 1:44 PM), https://www.npr.org/2020/03/12/814974205/chelsea-manning-recovering-after-suicide-attempt-in-jail-lawyers-say.
[31] U.S. Const. amend. V.
[32] Douglas C. Berman, Note, Coercive Contempt and the Federal Grand Jury, 79 Colum L. Rev. 735, 735 n. 3 (1979).
[33] Id. at 737–738.
[34] 28 U.S.C. § 1826 (1976).
[35] Id.
[36] Sasha Ingber, Chelsea Manning Sent Back to Jail For Refusing to Testify Before Grand Jury, NPR (May 17, 2019, 12:00 AM), https://www.npr.org/2019/05/17/724133556/chelsea-manning-sent-back-to-jail-for-refusing-to-testify-before-grand-jury.
[37] Booker, supra note 30.
[38] Matthew Barakat, Chelsea Manning Sent Back to Jail for Refusing to Testify in Wikileaks Investigation, Army Times (May 16, 2019), https://www.armytimes.com/news/your-army/2019/05/16/chelsea-manning-sent-back-to-jail-for-refusing-to-testify-in-wikileaks-investigation/.
[39] Id.
[40] Kevin Zeese & Margaret Flowers, Chelsea Manning Is Free From Jail, Faces Exorbitant Fines, Truthdig (Mar. 14, 2020), https://www.truthdig.com/articles/chelsea-manning-is-free-from-jail-faces-exorbitant-fines/.
[41] Booker, supra note 30.
[42] Jessica Corbett, After Chelsea Manning Released From Jail, Supporters Fundraise to Pay Off Her $256,000 in Legal Fines, Common Dreams (Mar. 13, 2020), https://www.commondreams.org/news/2020/03/13/after-chelsea-manning-released-jail-supporters-fundraise-pay-her-256000-legal-fines.
