Frequently throughout the long and drawn out process that has become the court martial of Pfc. Bradley Manning, reporters covering proceedings have complained or expressed frustration about the lack of access to court records. But, finally, the military has decided to allow a smidgen of transparency in the court martial to possibly avoid a major First Amendment ruling in a military appeals court that could find the United States military should be granting the press and public access to court martial records in the same way the press and public have access to federal court records.
On May 24, 2012, the Center for Constitutional Rights (CCR) filed a lawsuit ordering a judge to grant the press and the public access to court filings, such as government motions, court orders and transcripts of proceedings. I signed on as a plaintiff, along with Glenn Greenwald, Amy Goodman of Democracy Now!, The Nation magazine, Nation national security correspondent Jeremy Scahill, WikiLeaks, WikiLeaks editor-in-chief Julian Assange and Chase Madar, author of The Passion of Bradley Manning. The lawsuit is now before the Court of Appeals of the Armed Forces (CAAF).
This morning, a press release came to the inbox of reporters who have been regularly covering proceedings. It announced the Army was releasing pre-trial documents in the case—84 judicial orders and rulings—on Monday, February 25.
It is Wednesday, February 27. The press release appears to have gone out two days later than planned, but in any case, a US Army Freedom of Information Act (FOIA) Electronic Reading Room is now setup online for the viewing of records from the court martial of Manning, who is being prosecuted for releasing documents to WikiLeaks.
The “Reading Room” is here. However, a word of caution—when one goes to the website using a browser like Mozilla Firefox, it warns, “You have asked Firefox to connect securely to www.rmda.army.mil, but we can’t confirm that your connection is secure.” That suggests the website is collecting data and has it setup to intrude on the privacy of journalists or members of the public, who are visiting the “Reading Room.”
There are over 40 rulings and at least 35 court orders posted. Twenty-one of the orders are “court orders for records from mental health professionals.”
At this stage of the process—and in lieu of the fact that Manning will be pleading guilty to some elements of the charges tomorrow in court, two of the more valuable rulings posted are Judge Army Col. Denise Lind’s draft instructions for elements and definitions of the charged offenses and the ruling on the proposed pleas and maximum punishments for offenses, which Manning is pleading guilty.
The press release notes:
Due to the voluminous nature of these documents, it will take additional time to review, redact, and release all of the responsive documents. To date, more than 500 documents have been filed by the parties or issued by the military judge, totaling more than 30,000 pages. Documents will continue to be published as they are reviewed and prepared for release.
What is unclear is whether the records will begin to be made available in a timely fashion so that reporters can use them in their reporting. The day of the ruling copies should be made available to the press so they can be referenced when putting up stories the moment news is breaking. Unfortunately, the military is putting all records through the Freedom of Information Act process, even though the contents of the ruling were read in their entirety in an open courtroom. This indicates the press will be receiving access to rulings days if not weeks after stories have broken. They may be worth referencing when adding context to future stories, but they will not be able to be used to check accuracy and confirm what was heard in court is actually what the judge read during proceedings.
The military also said “pre-trial documents” were being posted. Does that mean trial documents are going to be posted? Or will this weak transparency end when the trial begins?
The CCR lawsuit requested access to orders, defense briefs, government briefs and transcripts or a substitute like audio files. One of the four categories has been posted to the “Reading Room”—judicial orders and rulings by the judge.
The defense has already posted a number of its motions on the website of David Coombs, Manning’s defense lawyer. Why haven’t the ones cleared for publishing on the Internet been added to the database?
The Article 13 ruling—the ruling on whether Manning was “unlawfully punished”—has not been posted.
A “legal matter expert,” who briefed the press, suggested some of the more “controversial” and longer rulings will not be appearing yet because they take more time to review, but the ruling on pretrial punishment came in the beginning of January of this year. It was extremely frustrating for press to listen to the judge read this ruling because it was next to impossible to keep up with her as she read the ruling for over one hour and a half without a break. She read the ruling at well over 100 words per minute, a pace that even a professional typist would have trouble managing.
Recently, the speedy trial ruling presented the press with the same problem. It was actually worse than the ruling on Manning’s confinement at the Marine Base Quantico correctional facility. The ruling contained numerous dates and acronyms for government agencies that all blended together. The effect was a dulling of the senses and a numbing of the mind, which is not what one wants to experience when trying to stay alert and keep up with someone reading a major ruling. [Note: Ed Pilkington of The Guardian calculated that Judge Lind was reading at 180 words per minute and there were at least 23,000 words in the ruling.]
Who knows when this will be released, and, if one were to search for facts from the ruling—not the main conclusion of the ruling but the facts the judge cited to justify the ruling, one would probably find it hard to find those details because it was difficult for the press to accurately get down all the dates and each of the proverbial ingredients in the agency alphabet soup.
CCR reacted to the ruling, “The publication today by the Army of a number of court orders, provoked by our lawsuit and many FOIA requests by journalists, is a long-overdue step towards transparency in the military court proceedings against Bradley Manning. However, the delays up to this point and the redactions make it difficult to trust that the military will provide meaningful access to the court’s rulings on an ongoing basis.”
The statement in reaction continued:
What the Army released falls far short of what we are seeking in our lawsuit. The First Amendment requires that the press and public have access to the court’s orders, the government and defense filings, and transcripts or audio files of the daily proceedings in open court. Today’s release only provides some of the court rulings. Other than a small number of defense briefs published by the defense counsel on his blog (with heavy redactions by the government), the rest of the materials connected to the trial are not available to the public in any way, despite the fact that the vast majority of this material is not classified or otherwise sensitive. And some of the documents contain absurd redactions; for example, the name of the trial judge is redacted throughout. [emphasis added]
Other questionable redactions involve, for example, the redaction in this ruling on a defense motion to compel depositions:
The Army claimed an exemption to prevent information from becoming public that would “deprive a person of a fair trial or an impartial adjudication.” The redacted information was heard in open court when the judge read the ruling and what I put down was that James Kulke (sp?), who did a classification review of three Apache gunship videos would specifically testify that “they were not classified at the time of release.” Why that would prejudice the accused is unclear.
In conclusion, the Army was backed into a corner. It was becoming increasingly clear that CAAF judges found the lawsuit to have valid arguments for issuing a ruling that would make court martials transparent in the same way that the Guantanamo military commission proceedings are transparent. The Army did not want that so it took the least worst option to hopefully convince CAAF to not issue a major ruling and decided to start posting rulings and orders and possibly other documents when they’re good and ready and certain all information that is “sensitive” has been redacted.
That does not mean CCR is done pursuing the lawsuit. This does not take care of many of the secrecy concerns the press has had. It does not grant access to documents the press should have access to under the First Amendment. And, if there is no timely access, what use is this system? It is good for historians but not press who are reporting on proceedings in real time.
It is critical to continue to pursue this important First Amendment case. This may have opened a “can of worms” and it may be a “Brave New World” now that the Army has setup the electronic infrastructure to have a kind of system for accessing court martial records in Army cases, but it does not guarantee transparency in court martials. Though the press may be able to cite this as precedent when demanding access to records in future cases, the press will still have to ask and that is problematic. The documents are not going to be automatically posted in a timely fashion.
Furthermore, the Army is consciously aware of the fact that there will be cases like the Robert Bales case, which involves a soldier accused of murdering civilians in Afghanistan. There will be cases like the Nidal Hasan case, which involves a soldier accused of going on a shooting rampage at Fort Hood. There will be cases alleging innocent civilians were killed or perhaps even maimed or tortured. There will be cases of sexual assault because rape culture is prevalent in the military.
The military would prefer to take care of its own and that can only be done by maintaining control of records and ensuring total secrecy whenever that secrecy is deemed necessary.