Judge Denise Lind (Courtroom sketch by Clark Stoeckley)

(update below)

The United States government has responded to a challenge against secrecy in the court martial of Pfc. Bradley Manning, who is accused of releasing classified information to WikiLeaks. The response addresses a petition for extraordinary relief that the Center for Constitutional Rights (CCR) submitted to the Army Criminal Court of Appeals (ACCA) to order Judge Denise Lind to grant the press and the public access to court filings, such as government motions, court orders and transcripts of proceedings.

Several notable individuals and media organizations signed on to the challenge: Salon blogger Glenn Greenwald, Amy Goodman of Democracy Now!The Nation magazine, Nation national security correspondent Jeremy Scahill, WikiLeaks, publisher Julian Assange and author of The Passion of Bradley Manning and contributing editor to The American Conservative, Chase Madar. And, I signed on to the challenge as a plaintiff as well.

The twisted argument the government is using to oppose further transparency in the proceedings involves invoking the Freedom of Information Act (FOIA). The government contends those signed on to the challenge have “public access to court-martial documents, through the FOIA and therefore extraordinary relief is not appropriate.”

The FOIA generally provides that any person has the right to obtain access to federal agency records except to the extent those records are protected from disclosure by the FOIA…Indeed, the “thrust of the FOIA since its initial enactment has been to provide for disclosure of governmental files unless an exemption is established.”

It goes on to add that Congrees requires “each agency” to “make the [requested] records promptly available to any person” unless subject to certain limited exemption and Congress “specifically included courts-martial within the definition of an “agency” and subjected them to the FOIA disclosure requirements.” The Department of the Army Freedom of Information Act Program, setup on November 1, 1997, and, specifically, the Judge Advocate General (TJAG), are authorized to “act on any request for records relating to courts-martial.”

Media in the press pool have submitted FOIA requests for records. They have requests that the military has yet to fulfill by providing information. That aside, the issue is not whether a reporter, journalist or member of the public can have access to records after each hearing. The issue is the lack of records that can be referenced when news media are putting together news reports in real-time. For example, when the judge reads a motion on whether Manning’s defense will have access to a damage assessment, they want the actual language read into the record so it can be included in an article or story. Obviously, if one agrees news reporting happens in real time as events are unfolding, it should not be reasonable for anyone in government to suggest that reporters could FOIA material and then wait for it and produce a news story on what happened later. By then, the next phase of the court martial could be happening. The trial might even be over. Manning might be convicted and in jail and then, who cares what the judge had to say about whether he, in fact, “exceeded authorized access” or not?

The government takes the availability of FOIA a step further and says if a FOIA request was denied a person could take a case to federal court and challenge the denial. This may be true, but, practically speaking, the government obviously does not care if reporters are able to report on the court martial or not. They could be tangled up in a FOIA lawsuit that makes it difficult for them to do their job. As far as press freedom goes, this is an acceptable way of working with press interested in covering the court martial of Bradley Manning.

This isn’t a new argument. This is how the military judge in the proceedings justified her decision to not grant the press or public access to documents. On April 25, CCR sent an attorney to address the court and argue why the proceedings should be opened. The judge would not let the attorney make an argument because CCR is not a “party to the proceedings.” She invoked Nixon v. Time WarnerInc., a case where the press was denied access to Watergate tapes and argued the court was not a “release authority” for documents in the proceedings and so it could not provide them upon request, even if the government found transparency in the proceedings acceptable.

CCR is submitting a reply to the government. The group and plaintiffs intend to continue to push for greater transparency in one of the most significant military justice cases in United States history. In the meantime, hearings will continue to be held because the judge does not think this lawsuit is important enough to have a “stay of proceedings.” So, for reporters covering Bradley Manning’s court martial, that means if they want to verify the accuracy of their reporting or go back and get a detail they missed during a proceeding, they must submit a FOIA request. They must fight the government to release records that are secret in this case but are not secret in the proceedings against 9/11 terror suspects being held at Guantanamo Bay prison. And, if they do not get them in a timely fashion, they must press on with their reporting and do the best they can without the records from the court martial.

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In case you missed it, here’s my appearance on Democracy Now! last Friday. I briefly discuss the petition for transparency in the proceedings. I also provide a few updates from Manning’s latest motion hearing:

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Update

A thank you from Manning’s defense lawyer David Coombs (and Bradley Manning) to supporters, which was recently posted at Coombs’ website:

At every court hearing, I am given the opportunity to witness this support first hand.  The attendance by supporters during these hearings as been nothing short of inspiring.  Although my client is not permitted to engage those in attendance, he aware of your presence and support.

During our latest hearing on 6 – 8 June, I was particularly struck by the warmth of support by those in attendance.  At one point during a break, I had casually mentioned that it was my anniversary.  Apparently a supporter had overheard this statement, and took up a collection to give flowers, a balloon, and a thoughtful card to me and my wife.  This kind gesture is emblematic of the type of people who are supporting Brad.

I would like to publicly thank all those who have supported my client over the past two years.  I also want to pass on the following message from Brad:  “I am very grateful for your support and humbled by your ongoing efforts.”  Brad also asked me to specifically thank on his behalf the unflinching support of Courage to Resist and the Bradley Manning Support Network.

What happens in this court-martial is of vital importance to all of us.  With your continued support, we will ensure that justice is achieved for Brad.