Another pretrial motion hearing occurred in the court martial of Pfc. Bradley Manning at Fort Meade today. During a recess in proceedings, a military legal matter expert opened a yellow envelope and pulled out physical copies of a ruling issued and read in court by the judge.
The handing out of a court record to press was unprecedented in the court martial. The press were collectively surprised to be receiving this document, which was a ruling on a government motion related to whether the government has to prove Manning had “reason to believe” information could cause “injury to the United States or advantage a foreign nation” under the Espionage Act charges.
Later in the day (and, again, much to the press’ surprise), another physical copy of a judge’s ruling was given to members of the press. It was a ruling on the defense’s motion to preclude evidence “the enemy” received information Manning disclosed.
Michael Ratner of the Center for Constitutional Rights (CCR) reacted, “ The occasional selection of a court filed paper by censors is not what the Constitution, a free press and public trials require.”
While the Army has begun to post court records to a “Freedom of Information Act (FOIA) Reading Room,” the posting of records is at the discretion of the Army. Press continue to understand that if a record is wanted the Army expects press to submit a FOIA request for that record.
The Center for Constitutional Rights (CCR) has brought a lawsuit arguing the press should be given access to court records and that lawsuit is currently before the Court of Appeals of the Armed Forces (CAAF). The government has fought this effort to give proceedings a greater level transparency. (This writer is a plaintiff in that lawsuit.)
The military expert explained that the documents were “pretty procedural” so it was easy for them to be provided to the press. Only Judge Army Col. Denise Lind’s signature and personal identifying information for Manning needed to be redacted.
FOIA exemptions were applied, but the expert said it was not run through FOIA because a citizen cannot make a FOIA request for a record that does not exist or is prospective.
The judge, according to the military expert, consented under a protective order to provide the rulings today. There is no “guarantee there will be a clean copy she is wiling to release” during every proceeding. In these instances, there were no changes to be made and the defense or government did not object to releasing the rulings.
“We have more latitude in here because it’s not in response to FOIA,” the military expert said. This is essentially what CCR has been arguing all along. FOIA cannot satisfy requirements for the proceedings to be open and transparent.
He added that FOIA requests are logged in a “tracker system” and then “processed.” Eighty-four records are up in the FOIA Reading Room right now. Four hundred-plus records are in the “tumbler of lawyer after lawyer deciding whether to redact details.”
“The FOIA system can be cumbersome,” he stated.
The military expert went on to suggest that CCR had argued “all written products” should be made available to press and all the hearings should be open. He added that CCR had requested “no closed sessions” and essentially had argued the government’s interest in protecting classified information should not be respected.
The problem is this process is likely to be selective and arbitrary. Rulings that are of great public interest are still going to be withheld.
“The legal mandate is for contemporaneous access to all documents, opinions, motions with the exception of classified material,” Ratner stated. “Claiming that procedural documents can be given to the press and public, whatever that term means, implicitly is saying substantive matters cannot or will be delayed. The right to unfettered access to court filed documents makes no such distinction. It’s time for the military to end this charade and allow access to what is contitutialy required. Manning’s right to a fair trial and the public’s right to know depends on it.”
Ratner also commented that applying FOIA exemptions so the ”full documents are not given to the press and public is unlawful.” And, “There is no basis for doing so. Only classified material can be removed. The absurdity of the FOIA application is demonstrated by the removal of the Judge Lind’s name from her own opinions.”
He concluded, “It’s time for the Court of Appeals for the Armed Forces to step in and do what it should have done a long time ago: tell this judge and the prosecutor to comply with the Constitution. The secrecy in the Manning case is like an open wound and it just bleeds and bleeds.”
This could be an aberration. Records may not be regularly handed out. The fact that there is uncertainty indicates this is still not good enough and more needs to be done to ensure there will be transparency in the court martial.