The defense for Pfc. Bradley Manning indicated in a military court that ensuring crowd-funded stenographers had access to create an unofficial transcript of the trial, which would be made available to media outlets around the world, was something they supported.

“We believe that this enforces Pfc. Manning’s right” under the Sixth Amendment during trial, defense lawyer David Coombs stated. He also added that it would have an positive impact on the press’ “First Amendment right to keep track accurately of what happens in the court martial.”

The Freedom of the Press Foundation (FPF) submitted a letter on the first day of the trial requesting that the Military District of Washington (MDW) media desk “issue two press passes to allow professional court stenographers access to the media room” so they could “transcribe the public portions of the court martial.”

Over 350 requests for credentials had been received, according to the MDW media desk. Only 80 requests could be accommodated—ten media could be in the court room and 70 could be in the media operations center, which has a closed circuit feed from the courtroom.

The letter, signed on to by media organizations that included Bloomberg News, the Los Angeles Times, McClatchy Newspapers, NPR and the New York Times, suggested if the stenographers were denied “over 280 of our colleagues who applied for credentials” would not be able to report on the trial, and “the public, which is closely watching the case,” would not be able to “understand the process and decisions made by this court.”

It explained that three media organizations had applied for “an extra slot”—Forbes, The Guardian and the Verge—so they could give one of their credentials to a stenographer, who would attend with reporters. This application was denied.

The defense this morning said that the stenographers would be given “access passes” instead of credentials. There was an outstanding logistical issue involving whether the stenographers would both be required to be on base the entire day (one transcribes AM session, the other transcribes the PM session). But, the military was working on making it possible for the stenographers to be producing transcripts with their equipment in the overflow trailer if there were days where there was no space in the media operations center for them.

Aware that there has been an immense amount of interest in Manning’s case, Judge Army Col. Denise Lind stated that the rules for court-martial were not “structured to provide contemporaneous access to a transcript.” However, accommodating this stenographer to produce an “unofficial transcript” would “further Manning’s right to a Sixth Amendment trial and further the public’s First Amendment right.” So, she had instructed the government to arrive at some compromise to ensure stenographers could attend proceedings.

Trevor Timm, a co-founder of FPF, reacted, “We’re grateful to David Coombs for directly bringing it up with the judge again.”

“We hope this means the stenographers will finally be issued two permanent press passes so that they can show up and do their job every day without worry,” Timm added. Also, he said the court martial had been “marred by unnecessary secrecy,” and, “if this decision means that the stenographers will be let in every day, no matter what, then it’s a small victory for open access. Of course, this is a service the government should be providing for free, instead of us and thousands of donors having to pay what will end up being over $100,000″ by the time the trial is over.

Shayana Kadidal, an attorney for the Center for Constitutional Rights (CCR) who has been arguing a lawsuit demanding contemporaneous access to records in the court martial for over a year now, said the government says there are no transcripts being put together from the trial. “There are audio files and they have no obligation to give those to us.” (Note: I am one of the plaintiffs in the lawsuit.)

The military finally release most of the records from the pretrial process during the first week of the trial. Kadidal, however, pointed out that this “data dump” was happening when the media was now “busy with the trial itself.”

He continued, “If they released them three weeks ago, it would have been quite substantially different than releasing them now when the media don’t get a chance to go through and and analyze them and then suddenly notice something that the government represents to factually a couple months ago in a pretrial file is contradicted by a position they take now.”

The military has claimed it must apply the Freedom of Information Act to any records from the proceedings, but, according to Kadidal, this is the wrong policy choice. The First Amendment is the policy they should be following and records should be “out there before the time the press is going to want” to do coverage.

The judge has adopted a ritual of putting on the record how many journalists are in the media center each day and whether anyone was denied access. She has decided to engage in a kind of charade with prosecutors and have them state each day whether there are any issues to ensure that the court record shows a level of openness has been maintained.

Lind also denied a motion to intervene filed by Reader Supported News (RSN) this morning because it was not submitted by the defense or prosecution and they were not a party to the proceedings. The motion had been filed when the military did not credential RSN for the trial.

Kadidal told Firedoglake that he was struck by the fact the military had not even made a show out of trying to fix access issues ahead of the trial when they knew “media would show up in droves.” They should believe there is an incentive to have people believe “this is a legitimate trial,” but they really “screwed it up by not fixing the more grotesque errors.” They had a fiasco with press passes during the first week and it “made the system look sort of farcical.”

On June 17, a federal court will hear argument in Baltimore in the lawsuit filed by CCR, which is now seeking a preliminary injunction. It is unclear how the case will proceed given the fact that the military has released most of the pretrial documents. They may have effectively avoided a ruling that could create a precedent for greater media access to US military court martials.

Finally, the point cannot be overstated that the production of court transcripts is a service that the military should be providing. The Guantanamo Military Commission provides transcripts in the few proceedings that are ongoing, including the 9/11 terror suspects’ cases.

It is remarkable that the media and the humanity of the world came together to fund stenographers, who would create a record of one of the most significant trials of the century, but it is not acceptable that the military maintains it is under no obligation to produce transcripts.

The military should be footing the bill for transparency, not the press and public.

Photo by savebradley released under Creative Commons License