Manning has been in an Alexandria jail since March 6, when she was called before a grand jury to testify about WikiLeaks, the online database maintained by Julian Assange and used by anonymous whistleblowers and leakers to get documents published. Manning used Assange's site in 2009 to expose US war crimes in Iraq and Afghanistan when she supplied stolen US intelligence documents proving they happened.
The Tuesday motion, filed in the US Court of Appeals for the Fourth Circuit in Richmond, Virginia, claims that Judge Claude M. Hilton, who presided over her March hearing, did not rule on the validity of any of Manning's arguments against her detention for refusing to testify, as he is required to do — he simply ignored them.
"As a preliminary matter, Ms. Manning believes that the constructive denial of her application to bail pending appeal at the district level occurred in violation of Rule 9 of the Federal Rules of Appellate Procedure, which requires the court to state in writing its reasons for its refusal. This requirement is not a mere procedural technicality, and may not be fulfilled by a ‘mere parroting of the standards set forth in the statute,'" the court document reads.
"Judge Hilton did not read or comment on this evidence. Without explicitly ruling on the motion for bail, he ordered Ms. Manning to the custody of the Attorney General. He issued no written denial or justification therefore, nor did he issue any verbal rationale for his denial of bail," it continues.
Manning argued that she was entitled to refuse to answer questions because she believed they were "derived from the illegal interception of communications."
"Ms. Manning made a prima facie showing sufficient to trigger the government's obligation to affirm or deny electronic surveillance. Thus, the government should have been required by Judge Hilton to respond to Ms. Manning's allegations. A failure of the government to respond sufficiently in the face of a prima facie allegation of electronic surveillance constitutes ground for an appeal of the issue. A failure to make any denials has been viewed as sufficient in itself to justify vacatur of a contempt," the court document says.
Her filing argues that there's no justification for keeping her in jail, much less what amounts to solitary confinement, since she's proven she's neither a danger to the public nor a flight risk.
Further, Manning argues that she should not be detained any longer and should be granted bail because detention itself in this case serves "a single lawful purpose: to coerce, through confinement, the testimony of a recalcitrant witness. Conditions and purpose of confinement may not become punitive, because due process protections are lower for the civil contempt hearing that is provided under §1826 than they are for someone upon accused or convicted of a crime, upon whom punishment is to be imposed," the document says.
"Usually, it is argued that confinement has slipped from coercive to punitive at whatever point a witness can prove that they are never going to cooperate, and that, as they cannot be coerced, their confinement serves no further non-punitive purpose. Ms. Manning has maintained consistently that while she will certainly exhaust her legal avenues in order to legally justify her decision not to cooperate, her continued noncooperation is a foregone conclusion, regardless of the legal outcomes," the document states, albeit granting, "However, at this early stage, that argument may be premature."
Manning was arrested and jailed for espionage in 2010, but her 35-year sentence for espionage charges was commuted to seven years of confinement by US President Barack Obama immediately before he left office in January 2017, and she was released that May.
Manning was kept in solitary confinement for nearly a year in 2010 and 2011 following her arrest. The filing notes this, as well as that UN Special Rapporteur on Torture Juan Mendez has specifically said that a duration longer than 15 days is tantamount to torture. She has been in de facto solitary confinement in the Alexandria jail for 25 days.
Finally, the filing argues that "It is clear that while the jail has bent over backwards to accommodate Ms. Manning's health needs, it may simply be impossible for them to confine her in a manner that does not constitute punishment," as she is recovering from a major surgery, for which she requested her detention be at home and not in a jail cell.