Pfc. Bradley Manning faces 22 charges at his arraignment. (photo: Fort Meade)

A letter calling on the judge presiding over the court martial proceedings of Pfc. Bradley Manning to grant the press and public access to records in the proceedings has been sent by the Center for Constitutional Rights (CCR).  The Center, which represents WikiLeaks and the media organization’s publisher Julian Assange are troubled by the secrecy that has enshrouded the proceedings. They call upon the judge to institute more transparency to better ensure that the proceedings are fair.

The letter sent to Col. Denise Lind reads:

[To] date this court-martial reflects – and indeed compounds – the lack of openness experienced in Pfc. Manning’s prior Article 32 hearing. Documents and information filed in the case are not available to the public anywhere, nor has the public received appropriate prior notice of issues to be litigated in the case… Without access to these materials, the Manning hearings and trial cannot credibly be called open and public. We do not understand how a court-martial proceeding can be deemed to comply with the UCMJ or the Constitution unless its proceedings are accessible in a timely fashion.

CCR President Emeritus Michael Ratner, who was present at the recent motion hearing and arraignment for Manning, finds that so far the proceedings have been “very difficult to understand, even for a lawyer, because the legal papers were not made available before the hearing. Nor could I read them after.”

This letter is not the first effort to gain access to records in the proceedings. A letter by the Reporters Committee for Freedom of the Press (RCFP) and co-signed by 46 news media organizations and associations was written to the US Defense Department ten days ago. The RCFP letter noted the reality that press have more access to records on the prosecutions of Guantanamo detainees in military commissions proceedings than they do in the court martial of Manning.

Ratner says he is shocked the letter didn’t lead to more transparency in the proceedings: “The fact that you and I are still having this conversation after the letter ten days ago I find appalling. There’s no law on their side. They can’t keep motions and filed papers away from the public.”

He thought the letter would do it, but RCFP has not heard back from the Defense Department and has no idea if there will be any action. Therefore, Ratner indicates failure to respond properly to these calls for transparency will lead to litigation.

CCR’s interest in the Manning proceedings is twofold: (1) WikiLeaks is a media operation and so the Center believes they should be part of the effort to open up the record and (2) everything happening in the trial centers on allegations of uploading material to WikiLeaks. So the idea that Julian Assange or WikiLeaks would have no access to this material is “astounding.”

This is the “most important court martial in fifty years,” Ratner concludes. “The public and media is being kept in the dark.” It’s “unfair” to Bradley Manning and it’s “unfair to the public.”

I know from experience what this level of secrecy means for reporting, as I covered all seven days of Manning’s Article 32 hearing and was a member of the credentialed media pool. I also covered Manning’s recent motion hearing.

Most of the media view the proceedings from the Media Operations Center, since there are only ten seats for press in the courtroom. Those in the Media Operations Center watch a closed-circuit feed. When technical glitches happen (and they have), there is no way for press to know what is said because a transcript can not be accessed. One can ask members of the press in the room at the time or military public affairs staff people that might have been present about the proceedings, but this is counterproductive. Military public affairs are reluctant to state what happened in the courtroom if they didn’t take notes, and fellow members of the press have stories to write and file.

As of now, if press doesn’t get a detail down correctly that is important, press have to wait and submit a Freedom of Information Act (FOIA) request. It is an ongoing proceeding and so the material is unlikely to be released. So journalists or reporters are being expected to wait for the next few years before getting possibly significant details out to the public in news reports.

There also is the issue of what is called 802 proceedings. For those who have followed my live blogging, this is when the military judge, prosecution, and defense are in the chambers conferencing in secret and nobody knows what is being discussed and the start of the proceedings is delayed.

Ratner explains “in military law is supposed to be confined to non-substantive matters like calendaring,” but “what seems to be going on in the trial is substantive discussion.” The most “egregious” example is the pre-trial publicity order,” which argued in an 802 conference. The judge, prosecution and defense came to an agreement. The judge signed the order. Nobody has seen the order. As Ratner says, “We never heard the arguments and the media never got a chance to weigh in on it. We don’t even know what the court order includes.”

As I said on Friday, it is as if proceedings have devolved into press conferences. Instead of having arguments in the open in court, 802 conferencing is used to hash out issues in private. A synopsis, summary or press statement is then read by the judge that gives the press and public an idea of what was happening in secret, but we do not know exactly how agreements happened. For instance, we don’t know how much the defense was bullied into accepting an agreement. We don’t know how much the prosecution cooperated or didn’t cooperate with establishing an agreement.

The trial of a soldier who is accused of one of the biggest leaks in history is, as RCFP wrote in their letter, “a matter of intense public interest, particularly where, as here, that person’s liberty is at stake.” Not only does the press and public deserve to see the military exercise more transparency with these proceedings but Manning deserves a trial with more transparency too.