Just over one year ago, the Center for Constitutional Rights (CCR) sent a letter to the military judge presiding over Pfc. Bradley Manning’s court martial that decried the “lack of openness” in proceedings. It condemned the fact that “documents and information filed in the case” were “not available to the public anywhere.” It complained about the failure to give the public proper “notice of issues to be litigated in the case.”
The US Army did not respond appropriately to the letter. The military court at Fort Meade rebuffed an attempt by a CCR attorney to make a statement on press and public access to proceedings on April 24. The same day the military judge, Army Col. Denise Lind, issued a ruling that invoked Nixon v. Time Warner, a case involving press access to the Watergate tapes, to justify secrecy in the proceedings, and she said the Freedom of Information Act was available to the press if they wanted records. CCR filed a lawsuit in May about a month later (which I signed on to as a plaintiff).
David Carr, who covers media issues for the New York Times, has written a story on how reporters “covering the government’s prosecution” have “spent a year trying to pierce the veil of secrecy in what is supposed to be a public proceeding.” It recounts how “dockets of court activity, transcripts of the proceedings and orders” have been withheld. Then, last month, the United States Army launched a “Reading Room” and posted 84 of over 500 documents from the case so far. (Carr says “roughly 400 documents” which is incorrect, as 500 documents was widely reported).
Carr laments, “It has made for rugged going for the reporters who serve as the eyes and ears for the rest of us. They can show up at court, but without timely documents that are routinely available in most other legal cases, they cannot really do their jobs.” He goes on to add, “Coverage has been limited, partly by the court’s restrictions and partly because an increasingly stretched news media business often does not have the time, or the resources, to cover lengthy trials.”
For the Times, coverage has been limited because it was not until December 2012 that the newspaper started to regularly send reporters to cover the proceedings—a fact Carr does not bother to mention. When the Times has been present during proceedings, articles from reporters Scott Shane and Charlie Savage, who have covered the proceedings, have been often cited by blogs and other news sites and helped to ensure news of what happened is distributed widely. So, think about how much the public would know had the Times sent reporters to every hearing like Firedoglake has been doing since December 2011?
Carr spoke to The Guardian‘s Ed Pilkington for the story. Carr writes that Pilkington has “been attending the pretrial hearings since December 2011.” This is true. He has been coming to pretrial hearings since December 2011, but that statement is misleading. He has not attended nearly every single day of proceedings like independent journalist Alexa O’Brien, Courthouse News‘ Adam Klasfeld and this writer. He was present for Manning’s statement and guilty plea to the court on February 28 but did not stick around to cover argument over a Defense Department “operator,” who was part of the raid on Osama bin Laden’s compound and who the government wants to call as a witness during the trial but refused to give the defense pretrial access to him to prepare for a cross-examination.
Pilkington covered the speedy trial motion ruling, the ruling on whether motive evidence could be raised during trial, how the government was citing a civil war case to argue Manning “aided the enemy,” the “unlawful pretrial punishment” ruling, Manning’s testimony on his confinement at the prison at Marine Corps Base Quantico, the prosecution claiming it had “evidence” Manning “aided the enemy” and the push for damage reports. Yet, a review of his articles shows he did not cover the final few days of testimony in December on Manning’s treatment at Quantico, how the government was withholding emails between Quantico officers from the defense, testimony from State Department witnesses in June 2012 and other stories from proceedings because he was not present.
That is not to say anything negative about Pilkington himself. His coverage has been good when he has been at proceedings. Rather, it is to point out that he is the reporter Carr went to for insight on what it has been like for reporters facing a lack of access to records, even though he is not one of the few who have attended just about every day of the court martial proceedings.
Carr did not contact this writer for comment for his story nor does it appear he contacted O’Brien, who could have given excellent insight because she has taken matters into her own hands and produced her own transcripts in order for the public to have a complete record of proceedings. He chose to rely solely on the insights of the most high-profile establishment news journalist, who has been there the most.
Notice, Pilkington works for an organization from the United Kingdom, not the United States, but Carr does not highlight how foreign press have been present while US media have been collectively absent.
In constructing his story, Carr completely overlooked how independent or alternative journalists have been driving or influencing coverage of the court martial. PBS FRONTLINE’s Arun Rath recognized this reality, which is why he produced coverage this month on the work O’Brien and I have been doing. He also went on NPR’s “On the Media.” When host Brooke Gladstone asked if there was important stuff being missed because “there isn’t a big media presence there,” he replied, “There would be stuff that we would be missing if there weren’t this hardcore group independent journalists who are there all the time. There are three of them – Alexa O’Brien, Kevin Gosztola and Adam Klasfeld – every single day.”
O’Brien and I are plaintiffs in the lawsuit and have both submitted declarations in support that describe our experiences covering proceedings. Guardian columnist 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, are all also plaintiffs in the lawsuit. But, this group of alternative, independent or progressive commentators and media organizations are unmentioned in Carr’s story.
Carr also does not broach the issue of why the Army may now be trickling out records for the public. If the press won in its lawsuit for access to records, it could be a major First Amendment ruling that would push the military into granting press access to records in future military cases—including ones involving sexual assault or rape or the killing of civilians in conflict zones.
Additionally, the court did make a decision in April 2012 on what would be public or censored and how information would be secured. As O’Brien pointed out, there was little from the US media when those decisions were made, even though organizations concerned about media access were barred from addressing the court. This is not highlighted in Carr’s story.
The attention to secrecy in proceedings by Carr is welcome. However, the number of US media that have covered this court martial so far is abysmally low. Edward Wasserman of McClatchy, writes:
…[T]he media leave Manning to face his accusers in a tribunal that is barely public, and by and large the media that were his beneficiaries can’t be bothered to staff the trial that will determine his fate.
He was a great source. His information was solid. The world’s best news organizations believed it was of immense public value. So now he goes to jail, perhaps for life, and the media stand in silence?…
However, the silence and inattention is not solely a result of a lack of access to court records. Though there may still be no access to court records in a timely fashion, there has been coverage regularly from O’Brien, Klasfeld and the newswires, The Associated Press and Agence France Presse. The defense has posted motions when they can, which has often given those who wish to cover the legal arguments being made ample opportunity. Major developments in the court martial, like Manning’s February 28 statement, have reminded the press the court martial is still ongoing. And then, there is this outfit—Firedoglake—which encouraged readers to send messages to media outlets as part of an effort to encourage more press coverage of proceedings.
In conclusion, Carr, for some reason, neglects to cover this dynamic—how independent and alternative journalists, who are not even based in DC, have been covering every day of proceedings and struggling with secrecy more than any reporters in US media. And, to a certain extent, one could infer conditions set by the US Army were primarily responsible for the low amount of coverage and that would be wrong because many outlets have made the choice to just not attend pretrial proceedings like the Times did for almost all of last year.