The Center for Constitutional Rights (CCR) has been diligently challenging secrecy in the court martial of Pfc. Bradley Manning, who is accused of releasing classified information to WikiLeaks. They have taken their lawsuit—a petition for extraordinary relief—to the Army Criminal Court of Appeals (ACCA), and now the Court of Appeals for the Armed Forces (CAAF) in an effort to force Judge Denise Lind to grant the press and public access to court filings, such as government motions, court orders, and transcripts of proceedings.
If you have been following coverage of Manning’s court martial at Firedoglake, you might be aware that there are multiple plaintiffs in the challenge and I happen to be one of them. The other plaintiffs include: 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 Alexa O’Brien, journalist for WikiLeaks Central.
The government does not believe it needs to grant access so as not to violate the First Amendment. A reply brief filed by the CCR shows the government justifies the continued secrecy through an array of absurdities, which they have used in their argument that CAAF should not grant the press access.
Here are the main absurdities that stick out:
(1) The government continues to argue that the Freedom of Information Act is a legitimate substitute for access to court martial records.
Imagine you are a reporter. You are sitting in the Media Center at Fort Meade in Maryland, where the court martial is taking place. You see the feed from the court room. Judge Lind gavels the court into session. She begins to read a decision that she just put together. It includes the facts involved, her analysis and what she ultimately decided. All of it is read in open court. Around ten to twenty words are being read every ten seconds. Not only that, she is reading numbers that appear to go along with legal cases that are cited and you some times get lost and stop and have to find a place to jump back in to get what she’s reading. She finishes and you look at your computer and you have some holes in what you got down. What do you do? Lean over and ask the reporter next to you if you can compare notes as if you might need this to pass an exam later? Or do you just forget it, produce a lower quality report that possibly doesn’t include a basic and major detail? As far as the government is concerned, you can do either but what you cannot do is see the decision that was just read in open court and should now be public information.
No, you need to just forget for the moment that you missed details, get back to work—There’s more to come in the proceedings. When you get back to the newsroom, office or wherever you work, you can draft up a FOIA request for the decision that you were interested in reading to verify accuracy and fill in the gaps in your notes. You draft your FOIA request. You send it to the Judge Advocate General’s office. But, wait, when did you send it? Oh, no, it was Thursday. The office will probably get it on Friday. The office is closed on the weekend and does not have to work on the request. On Monday, the office looks at your request. The clerk or staffer is advised to make sure you even have a right to see this information that you heard during the court proceedings. The person is advised to ensure there aren’t any exemptions or privacy considerations that need to be made. The clerk or staffer also might decide to get to the request later because the office has up to twenty business days to respond. The office might even decide to wait that long and then issue a denial. Plus, there’s no reason to fast-track the request. Don’t want to make other bureaucratic agencies in government look bad. Perhaps, the clerk or staffer even calls and asks, “Are you sure you need this? Didn’t you already report on this for your news organization?”
As mentioned in CCR’s brief, Josh Gerstein of POLITICO has filed FOIA requests, as the government suggests reporters do if they want to read records. His requests were denied. He requested documents that included “defense filings relating to speedy trial.” The Army denied Gerstein’s request in its “entirety on the grounds that they might interfere with law enforcement proceedings and deny the defendant a fair trial,” which is “truly astonishing” given that “many of the documents requested were filed by the defense.”
(2) The government would like “to continue to avoid the entire issue of public access by claiming the lack of a pending FOIA request by Petitioners renders any appeal to the burden of real-world FOIA processing delays here premature.”
To put it more plainly, since the plaintiffs involved do not have pending Freedom of Information Act (FOIA) requests, the government argues it does not have to grant journalists or reporters the remedy of access of to records. It is true that I have not submitted a request for records to the Judge Advocate General. That is because all those signed on to the challenge find it preposterous that the government is arguing FOIA requests can be a legitimate substitute for access to records. And it seems it would undermine our challenge to the government if we all started filing FOIA requests because then they could say, “They have pending FOIA requests. They obviously do not need to be granted relief if they think the FOIA process can give them the records they want.”
However, perhaps, this absurd argument suggests an activist campaign should be undertaken. If this is how it is going to be with the government, I suggest the Bradley Manning Support Network and all other activist supporters of Manning launch a massive campaign to flood the Judge Advocate General’s office with FOIA requests. Perhaps, if thousands of people are requesting the records, then this argument will be even more difficult for a judge to accept.
(3) The government argues since one journalist has been able to publish transcripts with “word-for-word detail” it is justified in denying all press access.
The government makes this argument because it has seen Alexa O’Brien’s notes. They contend because “O’Brien took such excellent notes on one given section of the proceedings on one day” all other reporters and journalists forfeit their right of access under the First Amendment. Obviously, there are two ways of taking this: one, I could be incredibly angry with O’Brien for being good at what she does and shame her for giving the government ammunition against us. Or, I could make the more legitimate argument, which is that just because one person possesses the exceptional ability to do the work of a court reporter does not mean we are all possess great stenographic powers. I know the US government is used to press that just copy down what is told to them and they might think we all possess this skill as reporters—to be stenographers for power. Some of us do engage in actual journalism, the kind of journalism that involves doing more than just synthesizing what we heard someone say to us.
Moreover, O’Brien is convinced that because of her skills the military would like to start denying her media credentials. She was threatened with being detained by a military police officer at the one-day hearing in June after she went to the Public Affairs Office to ask why she had not received an email confirming that she had been credentialed. And it is somewhat amusing that, while Fort Meade public affairs staff might not want her to return to the Media Center to cover the court martial, the government is simultaneously using her to make their ludicrous arguments.
(4) The government claims the judge, prosecution and defense would no longer be able to hold private or secret conferences in chambers if access to records was granted.
There’s often a section of the proceedings where the judge, prosecution and defense meet in private or secret that is called an 802. As one reporter in the media pool put it, “We’re not invited.”
From the brief:
…the government’s alarmist response claims that 802 conferences would no longer be possible under our proposed standard. That confuses what we are proposing (application of strict scrutiny to closed conferences) with something no party is proposing (an absolute bar on their use). Where a trial court makes specific findings of a compelling interest in arguing substantive issues in closed session, narrowly-tailored closures are permissible. But the routine use of off-the-record conferences to argue and decide nearly every significant issue in a case, as observed below, is not – even where both parties consent to it.
Part of the challenge to secrecy involves how the judge, prosecution and defense are improperly litigating or deciding matters in these secret conferences. The defense has actually objected to how the conferences are being conducted and filed a motion to record and transcribe these conferences. According to one of Manning’s defense lawyers, David Coombs, the prosecution is using secret conferences to relitigate matters that have been decided in open court. The prosecution is also taking one position in secret conferences and then taking another in open court proceedings. The judge denied the motion when it was raised in court on June 6.
Nobody is trying to take away the military prosecutors and judge’s right to privately deliberate over administrative matters. However, those signed on to this challenge do believe anything substantive should be litigated in open court.
(5) Transparency could lead to the court martial proceedings becoming a circus.
In making the argument that the press should not have access, the government inadvertently reveals why they really do not want the press to have greater access. They are afraid the media will sensationalize the proceedings. They cite two cases involving audio and video records to argue that the press should not have access to documents in the court martial.
As the CCR brief notes, seeking audio or video records is not the equivalent of seeking documents. However, if one considers this false equivalency, the two cases cited by the government are Nixon v. Warner Communications (1978), involving media that wanted access to the Watergate tapes, and United States v. Beckham (1986), involving media wanting access to tape recordings from court proceedings involving a city official accused of defrauding Detroit. CCR argues the decision in the Beckham case does not justify denying access to records because the majority ruling admitted media should have been granted access to judicial records and only argued media should be denied access to audio and video records.
CCR concludes the real issue in these cases was that the proceedings would be sensationalized if records were disclosed:
The Beckham court, for instance, noted that release of the actual tapes could impart a carnival feeling into the court room, increasing tensions in the community (where the mayor and the media were engaged in conflict over what he asserted was raciallycharged negative coverage) and importing them into the courtroom, and could also contaminate the jury pool because of the “misleading aura of accuracy to a tape recording.” Nixon involved similar concerns over commercially-motivated media sensationalism, but primarily turned on the fact that Congress had recently legislated in the field the common law right otherwise occupied.
Thus, the CCR maintains:
Nothing in the materials Petitioner-Appellants have requested has the potential to exacerbate jury taint or turn the Manning proceedings into a circus (though application of strict scrutiny is typically for the trial court in the first instance). Petitioner-Appellants are merely seeking access to the most sober elements of the documentary record. Far from turning this trial into a circus, public access to the briefs, orders and transcripts should increase the amount of respect and legitimacy accorded to the proceedings below. [emphasis added]
There should be no worries that the press would turn the proceedings into a circus if there was more transparency in the proceedings. They already have, in some instances, been transformed into a spectacle by the players involved.
The press and public have been privy to a judge that has had to play word games with military prosecutors to figure out whether they know of damage reports, investigative files, working papers or any pieces of paper that exist, which the defense has requested that may be material to the defense of Manning. The press and public have been privy to a judge and defense, who have had to pin the prosecution down so they would tell the truth about whether they intended to call an FBI witness. The press and public have been privy to a prosecution that had issues in between hearings when a spam filter would not let emails through that included the word “WikiLeaks.” And, in the most recent hearing, the press that showed up found out the media center they usually use to cover court proceedings was booked for a retirement party and then a journalist, Alexa O’Brien, was nearly detained and thrown off the base presumably because she found out about it and a military public affairs staff member was upset.
Manning will have another motion hearing from July 16-20. The press will, again, not be able to access court records from the proceedings. Meanwhile, CAAF will be deciding whether to reject our petition for access. If they don’t reject, there will be argument in the case. If it is outright rejected, the petition will be filed in a federal district court. If the case is heard and our claims are denied, we can attempt to take the petition to the Supreme Court.