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.
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.
"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.
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.
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?"
A perfectly fair question, but one that Capt. Fisher instead decided to "answer" with another assertion of executive level privilege.
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.
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.
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 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.
"You're entitled to more time as a matter of fairness, but the Constitution does not require it," Baker said.
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.
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.
Filed Under: bradley manning, court martial, foia, press freedom, secrecy, transparency
