Journalists Kevin Gosztola (left), Adam Klasfeld of Courthouse News (center) and Alexa O’Brien (right) at Bradley Manning proceedings

Whenever members of the US media have heard Pfc. Bradley Manning is about to testify or make some kind of statement in military court at Fort Meade, where his court martial is taking place, the press pool has ballooned. Suddenly, many media organizations want to cover pretrial proceedings in this historic case.

This happened again when news spread Manning would be reading a 35-page statement he had typed up in confinement at Fort Leavenworth. The few reporters, who have gained notoriety for always being at Manning’s hearings, sent messages on Twitter and posted that Manning would be reading a statement. Well-established United States media organizations then planned to be at proceedings on February 28 to hear him present the statement.

The few independent, alternative and newswire reporters that have been covering each day of the proceedings are: independent journalist Alexa O’Brien, Courthouse News’ Adam Klasfeld, Nathan Fuller of the Bradley Manning Support Network and reporters from the Associated Press and Agence France Presse wire services. (I have also attended every single day of proceedings since December 2011 except for his one-day arraignment hearing in February 2012.)

In the past months, the Washington Post has been sending a reporter more regularly. Ed Pilkington of The Guardian has been periodically attending. The New York Times finally began to send a reporter after public editor Margaret Sullivan criticized the fact that no Times reporter had been covering developments in a significant hearing on how Manning was treated while in confinement in the brig at Marine Corps Base Quantico.

Reporters who do not attend the proceedings have depended on the few who have been there to cover Manning’s case. On February 28, journalists contacted Fuller to request a copy of Manning’s statement not realizing there wasn’t a copy available to distribute. When Manning’s defense lawyer, David Coombs, announced in court in the day after Election Day that Manning would be accepting responsibility for providing some of the charged information to WikiLeaks, it fell to the handful of lesser-known reporters to get this story out because there wasn’t even a reporter from a news wire service to report this development.

Compounding the reality that a relatively small amount of reporters are covering Manning’s court martial is the fact that judge’s rulings, judge’s orders, defense motions, government motions and/or transcripts are not made available to credentialed press. Coombs has posted many of the defense motions on his blog and O’Brien has been doing a public service by producing near verbatim transcripts of each day of the hearings. But neither Coombs nor O’Brien should have to be in a position where it becomes their obligation to ensure proceedings are transparent.

Journalists and media organizations (including this journalist) in a case brought by the Center for Constitutional Rights (CCR) sued in military court to force the military to grant the press access to court records because the press has a First Amendment right to these documents.

On February 27, the US Army notified press a Freedom of Information Act (FOIA) “Reading Room” had been setup for access to 84 pretrial documents that had been posted. It appeared to be a watershed moment where there would now be transparency. However, in reality, it was the product of the Army realizing it had two bad options and a choice had to be made: allow a major First Amendment ruling to occur that could force the US military to provide access to records in all court martials or voluntarily begin to post documents from Manning proceedings by applying FOIA criteria.

The process set up did not seem to be one where records would be made available in a timely fashion so journalists could 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 documents, such as rulings that were read entirely in open court by the military judge, through a FOIA process.

No defense motions, government motions or transcripts (except for one partial transcript released for the CCR lawsuit) were posted to the “Reading Room.” The Army’s press release also said “pretrial documents” would be posted here. Should we expect trial documents to appear here when that takes place in June? And so, CCR is not done fighting because journalists’ First Amendment right to access records is still being obstructed.

Finally, there is the “aiding the enemy” charge, which Manning faces and is an “any person” offense. The government argues Manning “aided the enemy” by “knowingly” giving “intelligence to the enemy, through indirect means.” The “indirect means” is WikiLeaks, which published the “intelligence.” The “enemy” is none other than Al Qaeda leader Osama bin Laden. The “intelligence,” according to the government, is US State Embassy cables and military incident reports (war logs) found on digital media seized in the SEAL Team raid on bin Laden’s compound in Abbottabad, Pakistan. (Note: The government has not demonstrated the information published constitutes “intelligence.”)

The military prosecutors’ effort to tie Manning’s act of whistleblowing to terrorism could set a powerful precedent for targeting dissidents or whistleblowers, including conscientious soldiers in the US military like Pfc. Bradley Manning. It also poses a distinct threat to freedom of the press. Sources should not be held liable for material published by media organizations because such information or reporting winds up in the hands of individuals or organizations the US government considers to be “enemies” of the United States.

The government has claimed in court if the New York Times had been given the material it would still have charged Manning with “aiding the enemy.” Any journalists or press organizations that care about protecting their sources and preserving the tradition of investigative journalism, particularly national security journalism, should be concerned.

This op-ed was cross-posted to the Freedom of the Press Foundation’s blog. The Foundation is dedicated to promoting and funding transparency journalism. That includes making it possible for US citizens to donate to WikiLeaks. For more on the Foundation, go here.