A military appeals court has decided journalists and media organizations in a lawsuit being brought by the Center for Constitutional Rights (CCR) do not have standing to challenge the lack of access to court records in the court martial of Pfc. Bradley Manning, the soldier being prosecuted by the military for disclosing information to WikiLeaks.
For over a year now, a group, including this journalist, has been pushing for access to court records in the case. The decision is disappointing because it means the United States military will be able to, at their discretion, continue to effectively court-martial not just Manning but all soldiers behind a veil of secrecy.
The Court of Appeals of the Armed Forces (CAAF) found in its 3-2 decision that because Manning himself declined to join the litigation the court was being asked to “adjudicate what amounts to a civil action, maintained by persons who are strangers to the court-martial, asking for relief–expedited access to certain documents–that has no bearing on any findings and sentence that may eventually be adjudged by the court-martial.”
It also effectively concluded the military judge did not have control over the cases he or she is hearing and cannot make decisions on whether to make records in court martial proceedings available to the press and public. It did not side with the government but did not negate the government’s theory that the Judge Advocate General’s office has the authority to release records and any challenge against secrecy should be brought in an Article III court.
One of the judges, who wrote a dissenting opinion, appropriately pointed out in response to this that the judge, Army Col. Denise Lind, appears to be confused about her authority. In the same motion hearing on April 24, 2012, where she ruled the court could not grant the press access to court records, she “approved the publication of defense motions, pursuant to an agreement with the government, on a defense website.”
Later, in the dissenting opinion:
The fact of the matter is there is no rule that states that the documents, filings, evidence, and record transcripts created during an ongoing court-martial do not fall under the authority given to the military judge to exercise control over the court martial and ensure public access to the proceedings. If the plain language of R.C.M. 801 [a military rule] does not expressly provide the authority to control the documents created during the courtmartial process, then surely the rule implies that every military judge has the authority to regulate the release of those documents.
The other dissenting opinion written found a deeper fault in the ruling: the ruling would not only make it harder for the press and public to challenge access in court martial proceedings but it would have a negative impact on the accused’s ability to “review issues of public access.”
CCR’s Shayana Kadidal, who argued the case, reacted, “Today’s decision flies in the face of decades of First Amendment rulings in the federal courts that hold that openness affects outcome – that the accuracy of court proceedings depends on their being open.” He added, “Bradley Manning’s trial will now take place under conditions where journalists and the public will be unable as a practical matter to follow what is going on in the courtroom. That ensures that any verdict will be fundamentally unfair, and will generate needless appeals afterwards if he is convicted.”
Last week, during Manning’s most recent hearing, the Army took the unusual step of disclosing two rulings the judge had issued. A military expert there to take questions from the press handed out physical copies to reporters. It was unprecedented, but the expert said the rulings were “pretty procedural” and required very minimal redaction.
Since the final week of February, over 80 court orders and rulings have been available to press in a “Freedom of Information Act (FOIA) Reading Room.” There are well over 500 records that the press should be able to access, including government and defense motions. But, the Army is applying FOIA rules for exemptions or redactions to documents that in many cases the judge is reading in their entirety in an open courtroom. The records that require extensive review are not being made available to the public.
This is the public. Two of the most critical rulings on Manning’s confinement at the Marine Corps Base Quantico brig and whether his speedy trial rights were violated have not been released. Each of these rulings took over an hour to read. Reporters had to struggle to keep up with the judge as she read each word somewhere around a rate of 180 words per minute. There are aspects of both rulings that have gone unreported or underreported because they were dense and hard to follow as the judge read them into the record (so the Army could get away with not making them available to the public).
In conclusion, the military appeals court has only made the problem of public access in court martial proceedings and the ability to push for a remedy in military courts worse. Not only has the court entirely rebuffed the attempt of press behind this lawsuit but they have no recklessly created a decision the military can cite deny soldiers the ability to challenge lack of public access in proceedings.
Worse, processes under the Freedom of Information Act and the Army’s arbitrary discretion over what records to release and what not to release will continue to determine what little bit of transparency there is in the proceedings so those who cannot attend Manning’s court martial can know what’s going on. The First Amendment will not be a rule and, as a result, press freedom will continue to suffer as it did when the government was maintaining this kind of secrecy around Guantanamo military commission proceedings.
The government now publishes transcripts, motions and rulings from the military commissions. So, to restate what’s been written before: that means 9/11 terror suspects have more transparency in their trials than military soldiers and the military can exact a level of control over records in court martial cases that should be impermissible.