A five-person panel of civilian judges heard arguments on Wednesday from journalists and activists determined to have greater access to the records relating to the case against accused Wikileaks source Private First Class Bradley Manning.
The US military's Court of Appeals for the Armed Forces (CAAF) spent an hour on Wednesday listening in Washington, DC to why some say the military needs to make public the largely lock-and-key contents of the government’s prosecution of PFC Manning, a 24-year-old Army intelligence analyst who has been behind bars for nearly 900 days. Manning is scheduled to go before a court-martial in early 2013 for a slew of charges relating to accusations that he provided the WikiLeaks whistleblower site with sensitive documents, but arguments from months of the ongoing pretrial motion hearings and the Pentagon’s alleged evidence against the soldier have been shielded from the press and public alike.
The Center for Constitutional Rights began arguments against the government on Wednesday and is among a number of entities petitioning for access to court files that also includes Glenn Greenwald of the Guardian, Democracy Now’s Amy Goodman and WikiLeaks founder Julian Assange.
"If the public is to have any faith in its government generally and the justice administered by military tribunals specifically, it needs to have confidence that the system is operating in the open, where potential misconduct may be exposed,” the CCR wrote in a brief filed before the court.
Wednesday’s hearing ended with neither a decision from the appeals court nor any confirmation on if, when or how they will pursue the case. The panel did acknowledge, however, that the matter of making public the courtroom documents could be best left to a civil court rather than a military one.
"Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked attorney Shayana Kadidal of the CCR during the day’s opening arguments.
"It certainly wasn't challenged by the government," Kadidal responded.
Captain Chad Fisher, a counsel representing the US government during this week’s hearing, said that while the judge presiding over the Manning case has no constitutional obligation to releasing court documents, journalists and citizens alike are welcome to seek access to the files by filing Freedom of Information Act requests.
“The First Amendment public trial right is not absolute, and does not extend to all parts of a trial,” Cpt. Fisher acknowledged, adding that the public already has an “unencumbered presence” in the courtroom.
But while FOIA request may indeed allow journalists and civilians eventual access to courtroom documents, the government’s response to those inquiries so far has been largely scant. The Associated Press has been denied FOIA requests for courtroom materia,l and David Coombs, the civilian attorney representing PFC Manning, has relied on posting his personal notes and motions on his own website in an effort to open up the case to those who aren’t allocated a seat in the Fort Meade, Maryland courtroom that has hosted pretrial hearings for the last few months.
"These restrictions not only plainly violate the First Amendment and the common law, they undermine the legitimacy of this important proceeding," the CCR’s Kadidal wrote in a legal brief before Wednesday’s date. "These violations are particularly egregious in light of the First Amendment's mandate that even temporary deprivations of the right of public access constitute irreparable harm."
From court, Kadidal attacked again the chilling effect keeping the case so private has had on the press, arguing that the media would otherwise be able to more accurately report on the Ft. Meade hearings.
“It's almost impossible to understand what's happening, even if you have access to the courtroom," he said.
Reports from Wednesday’s hearing suggests that while the CAAF may not ultimately have a say in the case, they seemed apathetic with the attempts from the CCR and others to open up the case to the public and press.At one point in the day’s arguments, Judge Margaret Ryan asked Cpt. Fisher for an explanation as to why the military is making it so difficult to make the case public.
"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked.
Senior Judge Walter T. Cox III echoed his colleague’s statement by introducing the fact that the military commission at Guantanamo Bay can put all unclassified documents online yet documents pertaining to the Manning case are kept behind closed doors.
“Do you only do things the Constitution requires and not things good sense condones?” Cox asked.
"If they can do it, why can't you?" Judge Charles Erdmann chimed in.
Courthouse News adds that Kadilal may now ask for a stay of trial if the CAAF decides it does not have jurisdiction in the case and the matter of making proceedings any or less transparent is left to the military judge assigned to oversee the Manning ordeal, Col. Denise Lind. That would likely only prolong the state of PFC Manning’s court-martial, which at this rate will not wrap up until the soldier has already seen 1,000 days in prison, including a large chunk in solitary confinement being subjected to conditions considered torturous by the United Nations’ rapporteur on such matters.
Mr. Coombs has already tried to dismiss charges against PFC Manning for, among other reasons, the military’s failure to adhere to the 120-speedy trial limit imposed in the military court system.
“The Government’s process of this case makes an absolute mockery of that fundamental right,” Coombs wrote last month.
The military and the CCR and their cohorts now have until later this month to file motions explaining why they think the military court of appeals has the authority to intervene on the fate of the documents in the case. Manning’s trial is currently slated to start February 4, 2013. If convicted on the charge of aiding the enemy — one of nearly two dozen crimes he’s been accused of — he could spend the rest of his life in prison.