Bradley Manning's Prosecutor Scolded For Refusal To Open Access To Court-Martial Proceedings
from the government-hates-us-for-our-freedom dept
As was noted here back in September, several news organizations have begun a coordinated push to have the Bradley Manning court-martial "opened up" to allow the general public to access motions, briefs and rulings. The military refused (of course), inviting the press to entertain itself with near-useless FOIA requests, a clunky form of "openness" prone to inexplicable (and endless) delays when not being ignored completely.Fortunately, the military appeals court has taken this plea for openness more seriously than the government itself, which seems to treat it as an unwelcome nuisance at best. On Wednesday, the Court of Appeals of the Armed Forces (CAAF) began looking into allegations that the government has violated First and Sixth Amendment rights in regards to free press and public trials by making all filings and transcripts inaccessible.
The CAAF had little patience with the government's insistent obfuscation but seemed unsure as to whether it could actually force a change:
Center for Constitutional Rights attorney Shayana Kadidal had barely started his opening arguments about the public's hunger for more information on the case when one of the judges interrupted him. "Counsel, how do we have the jurisdiction over this matter?" Judge Margaret Ryan asked."Widely shared" is correct. In all, 31 news outlets signed off on an amicus brief filed by the Reporters Committee for Freedom of the Press, and several other entities have petitioned for access. Some discussion ensued as to whether or not a sort of PACER access could be implemented, and Kadilal proposed several possibilities, including paid stenographers, online audio streams of the proceedings, or having redacted documents posted to the court's website.
Kadidal appeared unprepared to answer, noting that the matter had not been disputed. "It certainly wasn't challenged by the government," he replied.
Other judges had the question in mind as well.
Judge Scott Stucky asked whether the journalists fighting the policy had standing to challenge a restriction that affects the press and public alike. Kadilal replied that the "fact that the injury is widely shared" did not harm his clients' case.
Chief Judge James Baker offered somewhat of a compromise in order to move the proceedings along:
Baker ordered the parties to submit written arguments about whether the court has jurisdiction to grant this type of relief. If the journalists vault procedural hurdles, the judges seem inclined to open court-martial access.At this point, the panel turned on government lawyer Capt. Chad Fisher, pointedly asking why the executive branch felt it necessary to force this issue to be discussed rather than simply open the trial up for public access:
"Instead of making a constitutional case about this, why not just make it available?" Judge Ryan asked, adding that the government chose litigation over "simple and reasonable" solutions.A perfectly fair question, but one that Capt. Fisher instead decided to "answer" with another assertion of executive level privilege.
In an amicus brief, the Reporters Committee for Freedom of the Press pointed out that military commissions at Guantanamo Bay put court records online. Judge Erdman picked up this point in asking, "If they can do it, why can't you?"
The captain insisted that courts-martial are a "creature of the executive" branch, rather than the judiciary.
While courts must provide prompt access to records, the public can seek executive-branch files only through Freedom of Information Act. Such requests, however, are subject to delays and exemptions. Many news outlets, including Courthouse News, have had their FOIA requests for documents in the Manning case denied.Basically, Fisher's answer boils down to: if the general public wants this information, it's going to have to work for whatever scraps the executive branch deems it worthy of. Nominally a tool of transparency, the FOIA has been twisted into a barely functioning layer of bureaucracy that most administrative agencies seem to treat as completely optional. Whatever doesn't get delayed indefinitely or redacted into uselessness is simply denied under any number of executive privileges or for bogus "national security" reasons. One of the CAAF judges pointed out this irony, stating that the FOIA statute has done more to close off access to the Manning case, than to open it further.
Fisher's next statement displayed the sort of hubris inherent in agencies that routinely disregard the rights of others:
Though the trial briefs and transcripts are not under seal, Fisher said that the government has no obligation to make them available.This answers Judge Ryan's question from earlier: why make a Constitutional case out of this? The answer: because certain agencies will never do ANYTHING that results in transparency or openness until forced to, and even then, their compliance will be marked by endless delays, appeals and attrition.
Judge Erdmann ridiculed that position. "You don't see anything wrong with giving the public the documents, but you don't have to so you're not going to," he said.
Judge Baker pressed the point by pointing out that the government's representation was willing to avail itself of all available rights and privileges, but was unwilling to extend those courtesies to others.
Baker highlighted the discrepancy by noting that Fisher, like his courtroom adversary, would get to speak after his allotted time.While it's refreshing to see a panel of judges as sick of governmental hubris and obfuscation as much of the public is, this matter is far from settled. The government will likely continue to hold out as long as possible before granting access to Manning's court-martial.
"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.
In order to expedite the proceedings, Kadilal has suggested that the court find that "court-martials have a First Amendment obligation to public access," passing along the implementation logistics to the lower court. However, if the CAAF finds the decision is out of its jurisdiction, Kadilal said he plans to seek "emergency relief in a federal court." Unfortunately, forcing the issue in this fashion would require Manning's defense to file a stay of trial, resulting in further delays for the defendant who has already spent over 900 days in pre-trial incarceration.
While demands for openness currently remain unmet, it's good to see another set of judges irritated with the standard M.O. of many government agencies: closed, secretive and unwilling to change unless forced.
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Filed Under: bradley manning, court martial, foia, press freedom, secrecy, transparency
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The US has lost the high moral ground when talking about censorship. Can we say now that it has lost any high moral ground when talking about human rights? Bloody 900 days, it's 3 years of your life throw away for absolutely nothing.
And that WITHOUT the NDAA.
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Re: PFRA Forever!
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FTFY.
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Freedom Isn't Free
At least the economy of death is doing better than ever...green shoots for murder popping up around the globe.
Not much for me to do except worry about my fantasy football lineup and try to pick the winning drone manufacturing and cyber security stocks.
Vote Romney...or Obama...I win either way.
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Does no one here understand the UCMJ and the security clearance that Manning had?
There are right and wrong ways to do things (or, correct and incorrect works too) and Manning did everything; wrong, incorrect, illegal and the article above is discussing the ability of the press to gain information on the court martial (not trial) NOT Manning's rights, how long he's been in "pre-trial confinement or any of the other items being discussed so far in the comments.
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Whether Manning violated the UCMJ is not the issue here either. SOmetimes matters of conscious will force people to violate their oaths. The issue here is that the citizenry would like to make sure that he got a fair shake on his court martial. Sometimes you have to do things that you are willing to pay the price for. But let's make sure that THAT is the case, and that he's being made a patsy.
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It is on record that he tried to report to his superiors the sending of intellectual commentators for torture and that they told him to shut up and get on with finding more to send to the same fate , but that has very little to do with the job he signed up for
Think about it before you make comments about the right and wrong way to do things.
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When your authorities are the crooked ones, where do the people that know right from wrong have to turn? In Manning's case now where but outside.
The value of whistleblowers has always been they know where the skeletons are hid and why they are hid. Without that exposure, you have no clue what the government is doing in the people's name when you run up on this sort of situation.
For #5 AC's comments, you better hope there is someone around willing to blow the whistle before the troops are at your doorstep in our police state. Otherwise there will be no limit of holding back when someone decides to use the final solution.
Back during the days of the Vietnam war, the troops had a way of dealing with authority figures that wouldn't listen to the troops with experience. It amounted to them saying, "Next"!
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he is still considered innocent until proven guilty
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Bradley Manning & U S Military
Upward & Onward with Hope & Love Budd Steers
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As a whistleblower, I could imagine him perhaps letting out a few pages of documents on a particular subject. He did not. He took everything he could get his hands on (possibly at the direction of Assange, that is TBD), and turned it over - hundreds of thousands of documents. That isn't whistleblowing by any stretch.
Perhaps you need to concentrate a bit more of what was actually done, rather than worrying about who gets to see what at trial.
Plus, based on what the judge said, I don't see them slapping down the prosecution any more than they slapped down everyone else. Spin much there Tim?
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Not exactly true. The release of documents like this very likely changed fundamentally relationships between the US and it's allies, it's more secret sources, and the like. They have made it less likely that someone would want to confidentially help the US, as they fear they will not be protected completely.
Actual harm here will always be hard to prove, because the government(s) in question to want to reveal anything more than is already out there. Hiding and saying "nothing happened" is moronic. Rocks don't drop in the water without ripples, plain and simple. You might not see the effects,but they are out there.
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If relashionships were fundamentally changed, it is because those relashionships were based on a false picture.
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Honeybun, only because the cables demonstrate that the US and other diplomats were a bunch of hypocrites that had been lying through their teeth and thought they were superior to the rest of the world. It had nothing to do with troop positions or anything that could put young American lives in danger. It simply showed us that America thinks that the rest of us are just pawns in their chessboard and our personal lives are supremely irrelevant to them. Who on earth is going to feel the same about American when they have seen a few home truths?. Don't make the mistake of shooting the messenger.
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