The defense for Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks, has decided to do its part to bring transparency to the ongoing pre-trial legal proceedings. In the face of refusal from the US government to be transparent, the defense has made an attempt to share court filings with the press that are usually made available during most federal trials but have not been available to press. However, the filings the defense posted—mainly defense motions—include redactions requested by the government, minimizing the value of the published filings.
A prime example is the defense’s reply to the prosecution’s response to a motion to dismiss all charges with prejudice. During the last motion hearing, Manning’s defense lawyer David Coombs called for the dismissal of charges that had been prejudiced by the failure of the government to produce evidence requested by the defense. The government is accused in the motion of deliberately withholding material, including damage assessment reports, which would reflect how “national security” was truly put “at risk” when Manning allegedly released information.
Below is a section of the defense’s reply. The defense highlights the government’s contention on the motion, but why exactly is anyone’s guess. Coombs provides some hints. The government does not think it clearly outlined how there have been “discovery violations.” Coombs points out the government does not even challenge the assertions that it has committed violations. Instead, the government has said:
Instead, the government has argued – Well, who really knows what was argued? The explanation has been redacted in its entirety.
The eighth page of this defense response has another huge chunk blacked out. It reads, “On 22 March, 2012, Cpt. Fein sent an email to the parties where he stated, in no uncertain terms, the Government’s position that RCM 701 [a military rule] does not apply to classified discovery.” Why? Again, the government does not think the press or public should be able to know.
The defense explains in the response that the government is engaged in “revisionism by pretending that they did not say what they clearly said and did not do what they clearly did.” The defense illustrates examples of how the government is doing this – six examples. One can scarcely figure out any specifics around this obstruction because what the government has said is withheld. It appears the government has flip-flopped on what classified information could and could not be shared with the defense, but what has led to this inconsistency, specifically, is censored.
Another section features a chunk of the government’s argument on why charges should not be dismissed is referenced. Again, this is apparently material in a public court proceeding that the government believes it should be able to keep secret from everyone.
In another recently filed defense motion made public that deals with a ruling on the discovery of evidence made in court during a March hearing, the defense challenges the withholding of “grand jury materials.” Thi
The defense put up the two motions previously mentioned on their website, along with motions that had already been filed and litigated in court. The decision to post motions came after the Reporters Committee for Freedom of the Press (RCFP), which had the support of several media organizations, sent a letter on March 12 requesting the US Defense Department grant the press access to court filings. And it came after the Center for Constitutional Rights (CCR) sent a letter demanding the same access on March 22.
In the interest of bringing some level of transparency to the proceedings, the defense voluntarily agreed to redact portions of the motions, which the government did not want published. The “redacted motions” were submitted to the court for approval and then authorized for posting.
It has been more than a month since the Defense Department and the government still refuses to make all filings available. The legal fun and games that the government is playing makes it clear that the government wants to prosecute and convict Manning in secret.
Michael Ratner, CCR President Emeritus, has wholly condemned the government’s commitment to secrecy: “It’s not like it’s up to the individual defense counsel or government lawyer to decide what the public should have…I find it completely outrageous that we are not getting both the government and the defense filings.” He added, the provision of defense motions only is “worse than nothing if the court or the government thinks this is what’s required by a public trial.”
The press and the public do not even get to know why the judge presiding over the proceedings, Judge Col. Denise Lind, does not think the government should be forced to make their filings public. There are no judge’s orders or government responses being published. The government believes everything it is doing in the legal proceedings should be concealed and private, and the effect of this belief is that legal proceedings for Manning are less transparent than military commissions for Guantanamo Bay detainees.
To show how reasonable this suggestion happens to be, here is a list of media organizations, who support this suggestion made by RCFP:
ABC News; Advance Publications, Inc.; A. H. Belo Corporation; Allbritton Communications Company; ALM Media, LLC; American Society of News Editors; The Associated Press; Association of Alternative Newsweeklies; Atlantic Media, Inc.; Bloomberg News; Cable News Network, Inc.; CBS News; Cox Media Group, Inc.; Digital First Media; Digital Media Law Project; Dow Jones & Company, Inc.; The E.W. Scripps Company; First Amendment Coalition; Gannett Co., Inc.; Hearst Corporation; Massachusetts Newspaper Publishers Association; The McClatchy Company; Meredith Corporation; Military Reporters & Editors; MPA – The Association of Magazine Media; The National Press Club; National Press Photographers Association; NBC News; New York Daily News; The New York Times; Newspaper Association of America; The Newspaper Guild – CWA; The Newsweek/Daily Beast Company LLC; North Jersey Media Group Inc.; NPR, Inc.; Online News Association; POLITICO LLC; Radio Television Digital News Association; The Reporters Committee for Freedom of the Press; Reuters News; Society of Professional Journalists; Stephens Media LLC; Time Inc.; Tribune Company;USA TODAY; The Washington Post; and WNET
Just about any media organization that is or will cover Manning agrees with the suggestion that Manning is denied the same rights that are afforded to accused terrorists. That is why this is unlikely to go on much longer before a lawsuit is filed in court against the government to force the proceedings to be transparent.
Legal proceedings in the case resume this week at Fort Meade in Maryland. They will go on from April 24-26. The proceedings will be a motion hearing similar to the hearing last month.
The defense has already made public details on what will be deliberated. At least four motions will be addressed, including a motion to dismiss the most egregious and severe charge of “aiding the enemy,” which the government has indicated is al Qaeda or any other groups related.
There is no trial date yet. This is all part of a pre-trial process that has already been long and drawn out.
I will be at Fort Meade covering the proceedings. A live blog will appear at The Dissenter on Tuesday morning. It will follow the proceedings throughout the day. Hopefully, there will be some challenge in court by Coombs to the secrecy the government has subjected this legal process to thus far.
CCR has renewed its request that the press and public be granted access to documents and information filed in the case. The group has sent a letter to Coombs and requested he pass the letter on to the government and the judge. It specifically calls for all orders issued by the court, including the case management order, pre-trial publicity order, protective order regarding classified information and other protective orders to be released, along with the government’s motions and responses to the defense motions and any authenticated transcripts of the proceedings. (There has, to my knowledge, been no transcripts of proceedings yet, however, Lind did express interest in seeing a transcript of the Article 32 hearing.)
Even more importantly, CCR requests:
…the Court require all conferences held pursuant to R.C.M. 802 be held in open court and be made part of the record in this case, to the extent they involve substantive matters,and regardless of whether the parties agree to have those substantive matters discussed and decided off the record. Moreover, we request that all Rule 802 conferences which have already occurred be reconstituted in open court.
This specifically refers to the many instances where the government, defense and military judge have been in chambers secretly conferring over matters for lengthy periods of times. They have repeatedly delayed the beginning of proceedings because the government and military judge prefers to handle matters in private.
The letter requests a legal explanation for the denial of any of these requests. And, it indicates that a senior attorney will be attending the hearing on April 24 and would like to address the court directly and present arguments concerning “requests for public access to documents and information filed in this case.”
Kevin Gosztola is the co-author of the new book, “Truth and Consequences: The US vs. Bradley Manning.” He will be doing an FDL Book Salon on April 28 on the recently published book.