A military appeals court, the Court of Appeals of the Armed Forces (CAAF), has scheduled oral argument in a lawsuit brought by the Center for Constitutional Rights (CCR), which challenges secrecy in the court martial proceedings of Pfc. Bradley Manning, the soldier accused of releasing classified information to WikiLeaks. The lawsuit calls for Army Colonel Judge Denise Lind to grant the press and public access to court filings, such as defense and government motions, court orders and judge’s decisions or rulings.
The court will hear argument on October 10 at 10:15 am at the military appeals court located in Washington, DC. CCR will argue the “default presumption against transparency serves no one’s interests – least of all the interests of the government, which will see the legitimacy of any
conviction questioned if the current status quo prevails.”
Scheduling of argument comes just days after thirty press outlets, including The Associated Press, Atlantic Media, Dow Jones, Gannett, Hearst, CNN, McClatchy, The New York Times, The New York Daily News, POLITICO, Reuters, the Tribune Co. and The Washington Post, signed on to a Reporters Committee for Freedom of the Press (RCFP) brief in support of the lawsuit.
Lawyers Gregg Leslie and Kristen Rasmussen conclude in their brief:
…This case presents a stark example of the dangerous extent to which pervasive secrecy in military court proceedings under-cuts the appearance of fairness essential to public confidence in the system and fundamental to the proper administration of justice. But this Court has the opportunity to restore public faith in the nation’s military courts by applying the same reasoning underlying its holdings that the First Amendment protects a right of public access to courts-martial to recognize a corresponding right of access to the documents filed therein…
They argue the “right of access to court records springs from the recognition that open judicial proceedings provide accountability and oversight,” asserting such access to records is not just a “beneficial practice” to journalists but also something “constitutionally mandated.” It helps ensure proceedings are more accountable by protecting the accused’s right to a public trial.
In order for proceedings to be considered “open,” court-martial documents must be accessible to the press. Those filing the brief write:
…Journalists rely heavily on court documents to gain and provide to readers the background of and context surrounding a legal controversy — awareness and understanding of which is often necessary to accurately report on the dispute. Prior access to the materials also allows reporters, the overwhelming majority of whom have no legal background or education, to process the oftentimes complex legal theories at their own pace, or to interview a legal expert who could explain the issues, so they are better equipped to understand what is transpiring in a proceeding they attend. A Los Angeles Times reporter recently described how a sealing order that applied to all court documents filed in the case of the alleged Colorado movie theater shooting suspect impaired his ability to cover the newsworthy event. “If you were to attend a hearing, it would be very difficult to understand what they were talking about, because you were prevented from reading the charges beforehand.”…
As one of the few journalists in the country who has covered nearly all of the hearings in Manning’s court martial so far, this is incredibly critical for the public to understand. Absent actual documents, all reporters have are notes they scribbled down quickly while trying to keep up with what the judge read or what the defense or prosecution had to say. Decisions may be read in their entirety in the courtroom but that does not guarantee all critical aspects are understood because what makes it into news reports is what press were able to get a whiff of during the proceeding. This guarantees context for decisions is missing from coverage.
Not many journalists have been able to attend the proceedings. The brief from RCFP makes an important argument that “deadline pressures” or “shrinking news staffs” limit coverage and making court records public can remedy this economic reality in the business of news. It also suggests that being able to access defense motions while government motions are unavailable ensures reports are imbalanced. This imbalance is an expected side effect of government secrecy and the press should not be concerned that reports may seem skewed in favor of the defense because the government is not more open. However, it is true that it is far easier to write about the proceedings from the point of view of the defense, since defense motions are available so striving to maintain “objectivity,” as establishment journalists tend to want to do by balancing sides, is made impossible.
Finally, secrecy in the proceedings appears to be another effort to protect the United States government from scrutiny. The lawyers note, “The pervasive secrecy underlying the Manning prosecution has reinforced and indeed fueled a theory that the US government keeps far too many secrets in an attempt to evade public oversight of its misconduct.”
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: Guardian writer 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.
I deconstructed the government’s arguments in favor of secrecy here weeks ago.
The government does not believe the First Amendment mandates that the press and public be granted access to records. CCR contends Judge Lind hesitated to “find in favor of public access to the documents and proceedings” because ACCA has not held the First Amendment guarantees access to “anything other than the courtroom itself.”
Both the judge and government have proclaimed the press and public have the Freedom of Information Act (FOIA) available and if they want access to documents all they need to do is submit a request. I submitted a Freedom of Information request as part of a drive launched by Firedoglake. Thousands of people co-filed in support of the request for the court’s April 24 decision to deny the press access to court records.
That decision is now public not because it has been given to me in response to my FOIA request but because it is evidence in the CCR lawsuit. CAAF ordered the production of a transcript of the decision.
Interestingly, the government did not only release a transcript of the decision but also released transcripts of court orders that were read into the record prior to the decision. This, as CCR points out, undermines the secrecy claims made by the government:
The twenty-one pages of transcript the government has filed on the public record in this Court were filed without a single redaction. Nor can there be any justification for failing to publish the trial court’s many orders, most obviously those that were read into the record during open court proceedings…Indeed, the government was not required by this Court’s Interlocutory Order to file the portions of the transcript that disclose any of these three orders. That it did so, without filing them under seal or redacting any portion of them, is simply another indication that most of the trial court’s orders can be filed publicly with no harm to the government or the integrity of the trial. [emphasis added]
As one can tell, the case is shaping up to be a critical First Amendment case that has the potential to usher in much needed transparency in American military justice.