Almost a month ago Chelsea Manning was released from jail for refusing to testify before a grand jury investigating Julian Assange. She explained her refusal: “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.”
For this she was held in civil contempt and incarcerated for two months, including in solitary confinement.
Her release came with the dissolution of the grand jury, but she was issued another subpoena for another grand jury investigating Assange and has been imprisoned again. This time, the judge is also imposing a fine of $500 per day after thirty days, and $1,000 per day after sixty days.
Her actions are being treated as an individual act of resistance. But if we put them in context — of her previous actions and the history of the grand jury — her resistance opens up opportunities for collective action and solidarity, especially in regard to unchecked prosecutorial power.
This is, of course, not the first time that Manning has refused to comply with the law because of her commitment to public transparency. In 2010, Manning, then a soldier in the US Army, leaked huge amounts of classified government documents to Wikileaks that detailed US abuses in the Iraq and Afghanistan wars: unreported killing of civilians; the failure to adequately investigate accusations of torture; increased use of drones; and the use of special units to track down and kill individuals without trial, among other things.
While no mainstream public intellectuals spoke up on her behalf then, we might expect more to do so now, especially since so many journalists have been lauding the goods of governmental “transparency” and “facts” in the wake of the Trump candidacy and presidency. Yet only a few journalists in publications like Teen Vogue and the Intercept have spoken up recently on behalf of Manning. Perhaps this is because Manning’s commitment to transparency goes beyond empty platitudes.
For Manning, transparency is important not as a vague good in itself. Rather, transparency is important because it enables democratic political action and solidarity — especially among those vulnerable to state violence — and because secrecy has so often been used as a tool of oppression and control.
While Manning’s earlier leaking of classified documents about American wars in Iraq and Afghanistan are often portrayed by her supporters as “whistleblowing,” the significance of Manning’s actions in 2010 and now comes more clearly into view if we see them as “outsider truth-telling,” a practice of telling the truth that (1) is not aimed (as with the whistleblower) only at remedying a particular wrong, but also at showing problems with institutionalized forms of secrecy; and (2) aims not only at holding wrongdoers accountable, but also works to change the world so that those on the margins (on the “outside”) — like Manning — might be seen as significant public speakers of truth. Manning’s recent refusal to testify should be seen as an act of outsider truth-telling that shows the violence of legal procedures that are supposedly neutral and purely fact-centered and changes the world so that we might value and listen to voices that are often excluded and devalued.
While grand juries now appear as a routinized part of the criminal justice system, they were originally a site of popular voice and empowerment. Imported from the common law system in England, grand juries along with petit juries (or trial juries) were meant to act as a check on the abuse of power by the state. Before a criminal charge could be brought by the king, a grand jury had to determine whether the evidence warranted it.
During the colonial period, a grand jury was convened in 1733 to determine whether publisher John Zenger should be charged with libel for insulting the royal governor. They voted against it, functioning as a check not only on the abuse of power by the crown but also against the implications of the charge for the freedom of the press. Grand juries are used to investigate circumstances where a crime may have occurred but further evidence is needed, including organized crime.
But they have also been used to gather information about constitutionally protected activity (such as the freedom of assembly) by those involved with social movements, including the environmental movement and the LGBTQ movement — for example, by secretly calling members of the community who were protesting the pipeline at Standing Rock to testify, law enforcement created conditions of distrust and fear of imminent arrest. Leaders in the Puerto Rican independence movement have organized campaigns informing community members about their rights before federal grand juries because they have long been the focus of such inquiries.
Manning’s refusal to speak to the grand jury draws attention to the ways grand juries now function in a way opposite to their original function: their broad mandate to secretly investigate and coerce individuals to share information makes them a tool of intimidation by the state.
The secrecy of grand jury hearings, while meant to protect the confidentiality of witnesses, ends up making them even more prone to prosecutorial abuse. All topics are permissible during grand jury questioning, and no judge is present. Furthermore, subpoenas for witnesses are not difficult for prosecutors to obtain, and there are no opposing lawyers to question why witnesses are being asked to give details about actions protected by the Constitution.
Those who serve as jurors, while expected to represent peers of those who may be charged, find it difficult to go against a prosecutor motivated to convict. Grand juries indict in 98 percent of cases.
What might be done to restore juries, both grand and petit, to better serve their distinct function as a barrier against unchecked prosecutorial power?
The first is to follow the lead of Chelsea Manning’s distinctive commitment to transparency. Making public the fact of her subpoena and her refusal to be further involved with the investigation, Manning resisted secrecy as a tool of control and sought to enable and expand forms of democratic solidarity, showing us how to assess grand jury proceedings: not narrowly, in terms of whether the law is followed, but more expansively, in terms of how well they further goals of democratic empowerment.
Here, context matters. Given that the charge against Assange proceeded without her testimony, it seems clear that the call for Manning’s testimony has more to do with targeting activists — and punishing Manning in particular. In contrast, when subpoenas are issued (as in the case of President Trump’s financial documents and of Donald Trump Jr. being asked to provide information to the Senate Intelligence Committee) for the purpose of congressional oversight and a check on unitary executive power, they are on the side of democratic empowerment. Looked at in context, Trump’s and his son’s resistance to the subpoenas runs contrary to the democratic spirit of the grand jury.
Second, voters should select prosecutors who share their views about the potential for the abuse of grand jury powers. As Emily Bazelon has written in her new book Charged, the discretion attributed to prosecutors in determining charges is dramatically out of balance with the judge and the jury, two other discretionary nodes. Voters have the power to change the ideology of criminal prosecution at its most influential point.
Third, greater education about jury service is sorely needed. Currently what jurors understand about their responsibilities comes mainly from the video they are shown at the beginning of jury duty (and what they have gleaned from true crime television shows and podcasts). Community workshops and teach-ins are needed to teach jurors about their range of responsibilities and common examples of bias during jury deliberation.
They do not know, for example, that they have the power to nullify — that is, to not indict during a grand jury or to find a defendant not guilty during a trial regardless of the evidence in the case. This right of nullification is the linchpin that holds together the jury’s responsibility to stop unjust punishment by the state, beginning with the process of indictment. Resisting a subpoena to appear before a grand jury and serving as a juror for one are two types of what Chakravarti calls “radical enfranchisement,” understanding that citizenship calls for a differentiation between law and justice at critical moments.
Finally, the commonsense view that refusing to participate in the grand jury process is automatically contrary to the aim of justice is wrong. What Chelsea Manning’s actions show is that outsider truth-telling (not just compelled testimony on the stand) and resistance to prosecutorial intimidation (not just compliance with a prosecutor) reflect the democratic spirit of jury service, and especially the possibility of furthering and expanding democracy, rather than contracting it, through the law.