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May 25, 2012

Why I’m Challenging Secrecy in Bradley Manning’s Court Martial

Posted in: Freedom of Information,Military,Press Freedom,WikiLeaks

Pfc. Bradley Manning (photo by Department of Army)

A challenge against secrecy in court martial proceedings for Pfc. Bradley Manning, who is accused of releasing classified information to WikiLeaks, was filed in the Army Court of Criminal Appeals (ACCA) on Thursday. The challenge—a petition for extraordinary relief—is being submitted to order the judge to grant the press and the public access to court filings, such as government motions, court orders and transcripts of proceedings.

As CCR notes in their press release, Salon blogger 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, have all signed on to the petition. I have also signed on to the challenge.

While I have concerns about the constitutional implications posed by a government intent to convict Manning in secret, I find that my experience as a credentialed media reporter, who has been attending Manning’s legal proceedings since December of last year, gives me the authority and obligation to oppose the ridiculousness that is the judge’s decision to dismiss concerns from the press about lack of access to court filings. And so, I support this challenge as a member of the press whose job has been complicated unnecessarily by the government’s penchant for secrecy in the Manning proceedings.

The filing notes “The restrictions on access to these basic documents in the case have made it exceedingly difficult for credentialed reporters to cover the proceedings consistent with their journalistic standards and obligations…These restrictions not only plainly violate the First Amendment and the common law, they undermine the very legitimacy of this important proceeding.” I wrote a “declaration” on these difficulties that was included in the submitted filing.

What the public should realize is no court filings means that reporters in the courtroom or Media Operations Center (MOC) at Fort Meade have one chance to get something down accurately. I have one opportunity to transcribe with all the proper context necessary for the public to understand what happened in key instances during the court proceedings. This is not easy because I have to scramble to keep up with the judge, who reads all court filings into the record to compensate for the fact that the government thinks sunlight is the best poison and not the best disinfectant.

Reporters have come together multiple times during hearings in the past months to compare notes because we are unable to reference anything after the proceedings for the day are over to verify that what we heard was written down properly. The scene is like one you might see in a high school classroom when students are asking each other if they were able to get down what the teacher said because it might be on an exam. Of course, members of the press don’t need to know this information to pass any test. They want to know this information so the public can know what is happening in one of the most significant cases in US history.

I have been asked why I have not been in the courtroom at Fort Meade yet. When I appeared on Democracy Now! in December, host Amy Goodman asked me if I was in the courtroom when I appeared to talk about the Article 32 hearing. I didn’t enjoy informing Goodman that I had not been in the courtroom. I think reporters that go into the courtroom definitely have more insight into the proceedings than those that remain in the Media Operations Center. But reporters cannot use computers in the courtroom.

I am unable to scribble notes and keep up with the judge. It is much easier to keep up if I am able to type. Secrecy in the proceedings puts me in an uncomfortable position: be in the courtroom and definitely miss key details or stay in the Media Operations Center and miss out on the scene in the courtroom so that I can ensure I get down most of what is stated by the defense, prosecution and judge in court.

The insanity of all this is amplified by the fact that the press and public can read transcripts in the military commission proceedings of the suspects, who allegedly were involved in the September 11th attacks, but the press and public cannot have access to the transcripts in the Manning legal proceedings.

The judge contends that the press have the Freedom of Information Act at their disposal and can make requests for any court filings. Such requests are unlikely to be filled before Manning is acquitted or convicted, and if convicted possibly sentenced and put in jail for life, without parole. By that time, reporters will have no use for the court filings.

Again, here is a list of media outlets that believe the proceedings should be more transparent:

ABC News; Advance Publications, Inc.; A. H. Belo Corporation; Allbritton Communications Company; ALM Media, LLC; American Society of News Editors; The Associated Press; Association of Alternative Newsweeklies; Atlantic Media, Inc.; Bloomberg News; Cable News Network, Inc.; CBS News; Cox Media Group, Inc.; Digital First Media; Digital Media Law Project; Dow Jones & Company, Inc.; The E.W. Scripps Company; First Amendment Coalition; Gannett Co., Inc.; Hearst Corporation; Massachusetts Newspaper Publishers Association; The McClatchy Company; Meredith Corporation; Military Reporters & Editors; MPA – The Association of Magazine Media; The National Press Club; National Press Photographers Association; NBC News; New York Daily NewsThe New York Times; Newspaper Association of America; The Newspaper Guild – CWA; The Newsweek/Daily Beast Company LLC; North Jersey Media Group Inc.; NPR, Inc.; Online News Association; POLITICO LLC; Radio Television Digital News Association; The Reporters Committee for Freedom of the Press; Reuters News; Society of Professional Journalists; Stephens Media LLC; Time Inc.; Tribune Company;USA TODAYThe Washington Post; and WNET

These organizations signed on to a letter sent by the Reporters Committee for Freedom of the Press (RCFP) back in March. Weeks later, CCR sent a similar letter and then they escalated their effort to more substantive legal action when the Defense Department dismissed both letters.

Virtually all media (not just alternative or independent media) find the secrecy in these proceedings to be problematic. I find the secrecy to be reprehensible.

The government has already withheld evidence the defense has demanded access to concerning the alleged harm done by the leaks. The government’s legal justification for this maneuver is hard to discern when there is no record to reference. All the press and public can rely on to understand the government’s position is Manning’s defense lawyer David Coombs who, not surprisingly, is going to be opposed to the government obstructing his access to evidence.

Secrecy makes it likely Manning’s trial will be improper and unfair. As a soldier who is accused of one of the biggest leaks or security breaches in history, Manning deserves a trial that is much more open.

Kevin Gosztola is the co-author of the book, “Truth and Consequences: The US vs. Bradley Manning.


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